Friday May 25, 2012 4:51 p.m.

San Diego DUI attorneys at San Diego County DUI Law Center just learned that San Diego Police Department will set up a drunk driving roadblock to trap Pacific Beach motorists Saturday night, May 26, 2012. Lawyers warn to stay away from Garnet and Grand Avenues, the believed location of the presently undisclosed DUI checkpoint in San Diego this holiday weekend.

For all current locations of San Diego DUI checkpoints, check Rick Mueller's free site here.

San Diego Criminal Defense Lawyer & Personal Injury Attorney Mary Prevost believes lawsuits against San Diego Police Department are worth everybody's attention.

Mary's sound advice:

"People need to take a stand and make sure they're protected by the police, not victimized by them," Mary maintains. "And if you're a woman, always carry pepper spray."

Recnetly, San Diego Police Department DUI Officer Anthony Arevalos was sentenced to almost 9 years in prison for multiple counts of sexual assault and battery — most of which took place at DUI stops.

Arevalos's accusers claim the San Diego Police Department knew about the dirty DUI cop's behavior the entire time. Mary Prevost claims this pattern is repeating itself across the United States.

SDPD DUI cop Arevalos, says prominent San Diego Lawyer Mary Prevost, who represents another of his accusers, identified only as Jane Roe, is "a microcosm of what's out there in everybody's neighborhood." Technological advances, like cell phone cameras and webcams, create a growing awareness that "a lot has been swept under the rug for a long time," Mary maintains.

One Ashley Steele claims she was the designated driver when San Diego Police Officer Anthony Arevalos pulled her over. She passed both a Breathalyzer and drunk driving field sobriety test, but that Arevalos decided to search her for "contraband," touching her breasts and buttocks and placing his hand "on top of her vagina." He then handcuffed her and took her to a police station, where she said she needed to use the bathroom. She alleges that he then took her to the bathroom himself, shut the door, and watched her urinate. Then he allegedly drove her to another station for booking, all the while asking if her breasts were real and if she had a boyfriend.

In her suit, Steele alleges that by the time she came into contact with Arevalos, the San Diego Police Department had already gotten complaints about him, but had neglected to follow up. In response to these allegations, city attorney's office communications director Gina Coburn claims that there had been one reported incident before Steele's. "Internal Affairs investigated that prior alleged incident and found insufficient evidence, but referred the matter anyway to the District Attorney’s office, which reviewed the evidence and declined to prosecute," she says. But Steele's suit says there were two reports beforehand, and that Arevalos also frequently bragged to other officers about pulling over attractive women.

The city has filed several motions in recent weeks in the case of Jane Roe, who says Arevalos "grabbed her genitals." One, seeking the release of Roe's real name, was just denied by a judge. Prevost claims the real goal of the motion was "to out her name to the press and to be abusive." Now attorneys for the city have filed another motion, to strike previous claims of sexual misconduct by other SDPD officers from the suit. Prevost believes this motion will fail because those claims are "relevant to a citywide policy" of ignoring or actively abetting police misconduct. She says this policy is still very much in effect — she cites another suit, filed in April by former Mesa, Arizona police officer Javier Cota, who says he was falsely arrested in June 2011 when he tried to intervene with two SDPD officers (neither of whom was Arevalos) who were allegedly harassing women.

San Diego County DUI Law Center features this free drunk driving location site for checkpoints and roadblocks.

Escondido drunk driving patrol from 6 p.m. May 5 to 2 a.m. May 6 resulted in DUI Police making 49 traffic stops, making 14 folks do optional field sobriety tests and arresting 8 drivers on suspicion of DUI during a San Diego County AVOID Task Force DUI saturation patrol over the Cinco de Mayo weekend.

San Diego's drunk driving criminal defense attorney Rick Mueller has a free evaluation online if arrested for DUI.

The San Diego County DUI Law Center has just released a new Series of Articles on the California Department of Motor Vehicles (DMV) Driver Safety Hearing Office Manual changes.

The DMV attempts to increase its improper stranglehold on attempts by those accused of driving in DUI cases who simply exercise their constitutional right to remain silent. Lawyers have long accused DMV of unfair hearings.

DMV published these new sections in their chapter 12 on administrative per se hearings.

There are pointed blogs in response to this unlawful state corruption: San Diego DUI Lawyer Center and California DUI Lawyer Center Blog. Read them now and ask yourself if it is ok for the Department of Morons & Villains to bypass the U.S. Constitution and California case law.

Lawyers in California have wondered how long it would take before a key state prevents the toke & drive. San Diego DUI attorneys are stunned by this news flash.

How does a state make a marijuana standard for drivers?

Here's what Colorado purports to do for a MJ DUI: if five nanograms or more of Delta 9 THC per milliliter in whole blood while driving or within two hours of driving could be charged with DUI per se.

This marijuana bill attacks Rocky Mountain Highers from driving under the influence of drugs and by increasing the penalties for doing so.

There was no previous DUI per se charge for people who drive under the influence of drugs.

Now, drivers whose blood contains five nanograms or more of Delta 9 THC per milliliter in whole blood while driving or within two hours of driving could be charged with DUI per se.

"It is the most liberal law not only in the United States at five nanograms, but quite possibly in the world."

What happened? This exact bill failed last year in the Senate after clearing the House. His continued push comes from what he calls an alarming trend.

"While the overall number of car accidents statewide has gone down over the past four years, those involving THC have actually gone up 59 percent."

This DUI drugs law would take the subjectiveness out of DUI arrests by establishing that nanogram cap.

DUI drugs law opponents say it will be expensive: the cost of this law, an umbrella type of approach, and they say there is no science behind the push. Many are quoted as questioning the usefulness of a five nanogram standard because THC lingers in the user's system.

Steve Elliot, a writer for internet blog "Toke of the Town" reports that medical marijuana patient and Denver Westword reviewer William Breathes registered at nearly triple the proposed limit when completely unimpaired and sober during a test last year.

Elliot says such evidence resulted in the original bill being shelved last year in favor of more study.

But local prosecutors say the testing that would be done if the bill passes would exclude users after a just a few hour window.

Fatal accidents involve drivers with only marijuana in their system. At a reading of the bill, the Senator listed off a number of accidents involving drugged drivers.

King claims there is valid science behind this cause. "The science is there and it's written in the blood of innocent people killed by DUI-D drivers."

More than a dozen states have laws on the books limiting the amount of THC drivers can have in their system. Pennsylvania has a similar 5 nanogram limit, a few other states have 2 nanogram thresholds, while many have a zero tolerance policy.

The bill now headed to the house and expected to easily pass also includes DUE per se charges for drivers who test positive for schedule-one controlled substances and a variety of synthetic drugs.

A legislative analysis released Monday estimated the pot DUI bill would cost more than half a million dollars next year to implement, requiring the bill to also be approved by the spending committee.

If you are a California driver under the age of 21 years old and were arrested for a first offense San Diego DUI or cited for an underage BAC driving offense, this new San Diego Drunk Driving criminal defense attorney article explains how to get a restricted license after 30 days. If your San Diego DUI lawyer prevails at the DMV hearing, this process will not be necessary. This DUI license restriction information is from the California DMV:

Hardship Restriction – Drivers Under Age 21

Pursuant to §13353.8 VC upon issuing an order suspending a driving privilege as a result of a violation of §23136(a), the department may impose restrictions on a person’s driving privilege based upon a showing of a “critical need to drive.” This applies if within 10 years of the current violation of §23136 VC, the driver has not violated §23136 or has a prior APS action or conviction and has not been suspended or revoked for a PAS or other chemical test refusal.

“Critical need to drive” means the circumstances that are required to be shown for the issuance of a junior permit pursuant to §12513 Vc.

Types of restrictions allowed may be:

- To and from school - For family illness - To and from work - For family enterprise and/or business.

Do not impose the restriction earlier than the 31st day after the effective date of the order of suspension.

An APPLICATION FOR CRITICAL NEED RESTRICTION, DS 694, must be completed and submitted to the Driver Safety Actions Unit in headquarters.

If approved, a $100 reissue fee must be paid and a California Insurance Proof Certificate, SR 22, must be submitted. Upon receipt, restriction and comment indicating the restriction will be updated on, the driver record.”

It is best to consult with a San Diego California DUI Attorney Specialist on how to properly handle this process.

San Diego DUI Lawyers want police to know that if they have legal problems and need an attorney, help will be provided. One San Diego County sheriff’s deputy convicted of DUI and hit & run was a police woman arrested in Palm Desert in August who faced 7 charges. She allegedly left the scene of a minor traffic collision on state Route 74 and drove to an apartment complex parking lot where she struck several parked cars and ran over a pedestrian’s foot. Also, she allegedly then drove several miles to a country club, where she allegedly crashed into a water fountain. Her sentence is 90 days of home detention. The California Superior Court Judge ordered San Diego County Sheriff's Department Deputy Barbara Crozier to serve 5 years of informal probation, completion of a DUI alcohol class. Crozier is still employed by the San Diego County Sheriff’s Department. She can still possess a firearm.

San Diego DUI criminal defense attorneys understand that people like to use their cell phone too much while driving. If the police see you illegally texting, talking on a non-hands-free cellular phone or driving erratically, the San Diego county cop may stop you and cite you. If you have been drinking, this could lead to a full-blown DUI evaluation, San Diego attorneys say. A distracted driver is unsafe, perhaps unsafer than a San Diego California DUI driver, lawyers are told.

San Diego County Sheriff’s Department & San Diego's CHP (California Highway Patrol) teamed up to look for and pull over distracted drivers in San Diego County recently.

Goal: cite California violators for hands-free useage of cell phones and text messaging laws, Deputy Sheriff's and Highway Patrol Officers were out on the streets and highways of San Diego County looking for violations.

From April 9 to April 14, 2012, here's the "distracted driving" take by police in San Diego county:

Citations to Adult Drivers for violations of non-hands-free( 23123 CVC) or texting while driving (23123.5 CVC): 438

Citations to Juveniles for Zero Tolerance Violations (23124 Vehicle Code): Four

Observed Violations/No contact made due to priority calls: 514

Arrests: Four arrests were made after contact for distracted driving.

Many driver cited have prior citations for some form of distracted driving.

14 San Diego DUI drivers were arrested after being trapped at Ingraham drunk driving checkpoint in Pacific Beach, lawyers are told today. 1,400 person passed through this San Diego DUI checkpoint which could not be avoided at 2600 block of Ingraham Street between 9:30 p.m. Saturday and 2:45 a.m., according to San Diego DUI attorneys who keep track of San Diego DUI checkpoint & roadblock locations at this free website. This San Diego DUI roadlbock & drunk driving checkpoint was sponsored by San Diego Police Department and the nearby California Highway Patrol. 5 San Diego DUI drivers were arrested during saturation patrols in Chula Vista, California DUI attorneys are told. San Diego area DUI Officers nabbed 3 drivers with a suspended license and 2 unlicensed drivers during the DUI enforcement. The Chula Vista patrols were held in lieu of a scheduled checkpoint due to weather.

San Diego DUI criminal defense lawyers were told today that last night, an alleged San Diego DUI driver rescued a stranded motorist injured in the crash. The stranded guy was in a broken-down red truck on the shoulder of the I-805 at the 52. The victim was apparently on the side of the road as his son was enroute to rescue. See this video on Yahoo. An alleged San Diego drunk driver in a newer model BMW hit the man's vehicle on the freeway. The San Diego DUI arrestee was allegedly driving at "full" speed when he accidentally rammed the back of the broken pickup truck, DUI lawyers are told. The slam ripped the vehicle's axle off. Then its gas tank burst in flames upon explosion. Gas burnt and spread all over the road, says 1 of 3 of San Diego's California DUI Lawyers Association (CDLA) DUI attorneys. San Diego county firefighters mentioned it appeared like "a lake of fire." Injuries were immediately sustained by the victim upon impact. The alleged DUI victim was reportedly stuck in the burning pickup. The BMW driver - with help from another Good Samaritan - managed to save the victim by pulling him from the vehicle which was continuing to flame. The man later arrested for a San Diego DUI managed to drag the accident victim from the burning vehicle. Upon arrival by emergency units from San Diego County, the pickup truck was entirely engulfed in a flaming gas pool. Firefighters put the flames down, and rushed victim to a San Diego hospital. The Good Samaritan driver agreed to perform voluntary DUI tests. San Diego CHP DUI police claim he did not pass these acrobatics. It is unknown what weight, if any, was given to the fact that the Good Samaritan BMW driver may have been traumatized from a major accident. The Good Samaritan DUI arrestee suffered significant head and facial injuries as a result of this near-death impact, which may account for his failure to perform per the San Diego CHP DUI officer's satisfaction. While there may be innocent explanations for the so-called "fail" or "not completed per instructions," the gentleman was arrested for a San Diego DUI. It is unknown what the damages are to his BMW but he apparently will face some steep tow and impound fees for this San Diego drunk driving charge.

In San Diego county last night and tonight, Chula Vista Police Department features DUI Saturation Patrol on 04/13/12 from 7 p.m. to 2 a.m. and a DUI Checkpoint on April 14th, 2012 from 6:00 p.m. and 2:00 a.m. as weather permits, San Diego DUI attorneys warn. Driver's License Check is another purported reason for the roadblock, DUI lawyers in San Diego are told. DUI checkpoint locations in San Diego County are updated here by San Diego County DUI Law Center's attorney Rick Mueller. DUI cops do it this way: trap drivers at the San Diego county DUI checkpoint. They try to look for possible symptoms of alcohol & drug use or impairment, San Diego drunk driving lawyers are told. Remember acrobatics & gymnastics aka field tests are optional. Be polite & respectful. San Diego DUI cops claim they are also looking for valid California licenses. Incredibly, San Diego DUI checkpoint cops further maintain they will delay drivers "only momentarily." That usually does not happen, criminal defense attorneys know. There is lots of DUI money involved for San Diego county municipalities: fines, fees, DUI classes, costs, etc....can "exceed $10,000."

This San Diego DUI / DMV Defense Attorney Blog features exclusive and elaborate San Diego DUI Help resources. The San Diego County DUI Law Center specializes in drunk driving defense and is the professional law corporation maintained by California DUI Lawyers Association Specialist Attorney Rick Mueller.

Visible on elite sites such as Yahoo, Google, Yelp, Avvo, Trip Advisor, San Diego Metro Magazine, California DUI Lawyers Association website, National College for DUI Defense, publications such as San Diego DUI Law Center blog and the latest California DUI Lawyer Center Blog, these posts and twits allow viewers to stay current, read about celebrities, find out what is going on with corruption in the police department, discover locations of San Diego DUI checkpoints, gather pointers on avoid a California DUI, and educating the public on nuances associated with the top of a DUI.

Under the Interstate Driver's License Compact (DLC), member States must communicate the fact of a conviction for DUI to the "Home State", according to the National College for DUI Defense lawyers' website. San Diego DUI lawyers remind that the "Home State" then takes action against the license under its own laws. Forty-five States are currently members of the Interstate Compact, according to these DUI attorneys. Out of State convictions count. Under all but a few geographical exceptions, it will be impossible for an out of State resident to avoid serious consequences in their home state. Suspension can however be avoided if proper steps are taken in the Courtroom and with the DMV. In addition to the Compact, non-residents need to be concerned with the impact of any action taken by the DMV in the offense State against their right to drive in their home State. Many out-of-state residents mistakenly assume that their license will remain valid in their home State even if they lose their right to drive in the offense State. Under the registry, (All 50 States) any State that suspends your license must input the suspension into the Registry's computer databank. Every member State is required to check the registry's databank whenever a person seeks to have his license renewed or applies for a new license, and are required to deny the license if there is an out of state suspension.

Police Chief charged with DUI refuses voluntary tests, reports the San Diego County DUI Law Center. Maybe the Chief knows that little or no reliable can be placed on the outcome of field sobriety tests aka acrobatics aka gymnastics, San Diego DUI attorneys suggest. Read this San Diego Fox News story.

Escondido Police Department plans yet another California DUI / Drivers License checkpoint Saturday, April 7, 2012 from Six P.M. to midnight. Police will patrol all night and especially between 12 PM and 3:00 AM. Escondido DUI Checkpoints in California are common. Exact locations are maintained by San Diego County DUI Law Center here. California DUI Officers take those trapped in the checkpoint to San Diego County Jail. So stay alert and sober.

You hate to see California cities unfairly profit. But San Diego DUI attorneys know it happens. The money San Diego DUI lawyers say Escondido makes off checkpoints is now in question. Illegally profiting from San Diego county California DUI checkpoints? Escondido’s checkpoints started out as “driver’s license checkpoints,” purportedly designed to catch hit-and-run drivers and typically conducted during morning hours. But state law prohibits stopping drivers solely to check their license status, so Escondido renamed the daylight operations DUI “sobriety checkpoints.” But state grant money cannot be used for “sobriety checkpoints” before 6 p.m., after which drunk drivers are more prevalent. The latest criticisms, from investigative documentary reporter John Carlos Frey of Los Angeles and the local chapter of the ACLU, involve Escondido’s towing, impoundment and processing fees, which once approached $1,300 for each seized car but plummeted recently because of a new state law that imposed tighter restrictions on impoundments. A report by Escondido’s Finance Department showed that it costs the city $185.05 to seize a car, and that it charges motorists $100 or $180 depending on the circumstances. City Manager Clay Phillips says that, based on the report, the city’s charges are appropriate. The city also denies that it is misusing state grant money. But Frey and the ACLU say Escondido’s charges are significantly higher than what other local cities charge. San Diego, for example, charges $54; San Marcos, $58; Poway, $70; and Vista, $120. In the last three years, Escondido and tow companies reportedly raked in $11 million from seized cars. Because of the new state law, Escondido must now allow a sober driver whose only offense is not having a valid license to turn the car over to a licensed driver. That is what other cities were doing all along. Escondido long ago lost credibility on the checkpoint issue. According to the ACLU, some $350,000 in state grant money is unaccounted for. And is it plausible that Escondido’s costs for seizing a car are three times that of San Diego’s? Or that it took just 33 minutes of police labor for Escondido to seize a car in 2007 but it now requires 187.5 minutes? Seizing a car, according to Escondido, costs $1.44 in wear and tear on bulletproof vests and $5.77 in patrol unit depreciation and maintenance. Really? All of this may well land Escondido in court, and will only add to its unfortunate reputation as a city that goes overboard in targeting undocumented immigrants. But it should not come to that. Escondido ought to ask an independent agency, perhaps the state auditor, to conduct a review. Otherwise, suspicions will continue to grow that in trying to enforce the law, the city is in fact abusing it.

San Diego DUI criminal defense lawyers are often asked what is a "wet and reckless."

Any tour of multiple breweries carries with it both the possibility of discovering the next big thing or the next big disappointment. Sometimes a brewing company you had little to zero expectations for shocks your taste buds into standing up, taking notice and turning you into a lifelong fan or vehement hater. Other times, a place turns out to be everything you thought it would be and possibly even more. That was the case for a Reader writer with Wet ‘N Reckless.

Wet ‘N Reckless is located at 10054 Mesa Ridge Court, Suite 132, San Diego California.

Despite hearing multiple negative reports, I forced myself to leave them all behind as my companions and I made our way through the Mira Mesa business park labyrinth to Wet ‘N Reckless. Objectivity is not only important, but something it’s my duty to maintain until given firsthand evidence to abandon. Entering the small, mashed together, juvenilely decorated tasting room did little to foster encouragement, but no brewer should be judged on their interior design skills. We ordered a eight-beer taster flight, took our seat at a flimsy wooden table and sampled away.

Rather than spend paragraphs dissecting the individual problems we found in each beer, I’ll mercifully sum up the general problems we found across the line in as brief a manner as possible. Overall, the beers were syrupy (you could probably lacquer your woodshop creations with Hells Belg), suggestive of large amounts of diacetyl (too many to individually note), tasted awful (all of them), were the wrong color (the most unidentifiably dark IPA I’ve ever seen), and terribly named (Genocide IPA, Pop My Cherry Ale).

Speaking of ill-conceived names, “wet and reckless” is a term used to describe a type of DUI plea in the State of California. Wet ‘N Reckless owner Dave Hyndman claims the name of his business has nothing to do with any of that and refers to his “reckless” (you can say that again) brewing style. Further driving all of that what-not home is a handful of laser-printed signs posted up in the tasting room encouraging people to consume responsibly and drive safely. My favorite was the one taped up next to a poster of sobriety spokesmodel, Jeff Spicoli.

The total cost for our shared misery was nine dollars—over a buck per plastic cup (because, really, nothing maintains the temperature, flavor and integrity of an artisanal beverage like plastic, right?) of subpar suds. Despite the three of us reluctantly taking second and third sips, trying to find redeeming qualities to note, not one of those beers got finished. I’m still reeling at the fact our hard-earned money was exchanged for lazily manufactured, extract-infused shortcut beer.

That’s right…extract is used. That in itself is not the worst thing in the world. I know many homebrewers—you know, beginners just getting their feet wet (but not necessarily reckless)—who produce totally drinkable extract brews. When given encouraging compliments, they typically smile before shrugging and saying stuff like, “thanks, but it’s just an extract brew…I’m working my way up to all-grain brewing.”

What’s the point in going to all the work when you can just take extract recipes, open up shop and join the ranks of San Diego’s rich pantheon of award-winning, top notch brewmasters? I suspect Hyndman is about to find out.

I don’t presume to be clairvoyant or have the end-all opinion where craft beer is concerned, but I possess a pretty solid understanding of San Diego, our drinkers, and the rest of the local beer industry playing field. Not only can Wet ‘N Reckless not hang with the likes of heavy hitting Major Leaguers like AleSmith, Ballast Point and The Lost Abbey—they’ll be hard pressed to sustain a meager life treading water in the minors, especially with Green Flash Brewing Company’s grand scale facility occupying the intersection giving way to Wet ‘N Reckless’ obscure, darn-near-hidden digs. It’d be like passing up The French Laundry and driving a longer distance to get to Jacque dans le Boîte (Jack in the Box).

DUI driving or DWT driving when texting is dangerous and can easily be the reason for a collision, San Diego DUI attorneys remind.

What about that known silent risk factor that slows down reaction time just as much, if not more: drowsy driving, ask DUI lawyers in San Diego?

If you are tired or driving drowsy, please safely pull off the road at the first safe and legal chance to do so.

“Most people know [the danger involved] when they’ve had a little too much to drink and then drive,” says Phil Konstantin of San Diego, California, who served on the CHP for 20 years. “But almost every single driver is likely to drive [drowsy] at one time. Yes, it happens at night on the highway, but it also happens in the middle of the day on a small road in town.”

In the November 2010 study, the AAA Foundation for Traffic Safety found that 41 percent of drivers admitted to falling asleep or nodding off while driving at some point in their lives. More than one in four drivers admitted to driving when they were “so sleepy that [they] had a hard time keeping [their] eyes open” at least once in the month before the survey was conducted.

In a report published last year, the National Highway Traffic Safety Administration estimated that drowsy driving was involved in 2.2 to 2.6 percent of all fatal crashes nationwide each year during the period of 2005 through 2009. In 2009, drowsy driving was involved in 832, or 2.5 percent, of fatal crashes in the United States.

Konstantin knows far too much about the topic, both professionally and personally. As a public affairs officer for the California Highway Patrol, Konstantin gave talks on public safety and driving. One of the topics he discussed was drowsy driving. So it was especially heartbreaking when his wife, Robyn, was killed in a drowsy driving incident on April 6, 1999.

“She was a good driver, used to long distance and had heard all about safe driving from me,” says Konstantin. Nevertheless, she died in the middle of the night on a long stretch of road in Texas when she fell asleep, woke up and crashed into a guardrail that crushed her inside the car.

Robyn was a mile and a half past a rest stop when she crashed. Konstantin wishes she had stopped there; it could’ve saved her life.

In 2005, Konstantin successfully petitioned the California State Senate and the California State Assembly to have April 6 declared Drowsy Driving Awareness Day to educate other drivers on when to get off the road.

If your eyes are closing or losing focus, if staying in your lane is challenging, if you miss exits or turns, if you can’t remember where you’ve been or when the song changed, you may have already nodded off. At that point, it’s time to get off the road. The highway is especially dangerous because of the speed limit.

“At 65 miles an hour, you are covering 100 feet a second,” says Konstantin. “Two seconds means the length of two football fields, and that’s a lot of opportunities for something to go wrong.”

Monotonous highway driving can have a hypnotic effect, so switch off driving every two hours and take frequent breaks. Avoid driving after taking any medication that advises against the use of heavy machinery because that description includes your car. Make sure you get the proper amount of sleep before long trips, and check your energy level before short ones.

A 20-minute nap can help revive you. If you can’t take a nap, exit the car, stretch your muscles and walk around for a few minutes. If it’s impossible to stop quickly, try chewing gum, turning on cold air, drinking caffeine or listening to talk radio. Any of these activities can help revive you for very short periods of time. Just get off the road, suggests criminal defense attorneys handling DUI cases in San Diego.

Former San Diego County, Mission Bay High School Player Matt Bush was arrested for DUI in Florida.

The former San Diego Padres/Tampa Bay Rays player also faces DUI hit and run for an accident, raising the stakes per drunk driving attorneys.

A struck 72 year old motorcyclist remains in serious condition, according to San Diego DUI lawyers.

Florida Highway Patrol reports that at apx. 5:22 p.m., the suspect hit the rear of said motorcycle after moving behind it on US 41. The motorcycle overturned, ejecting Tony Tufano.

DUI Attorney Prosecutors maintain Bush allegedly then fled the scene, heading south on US 41. A BOLO was issued for his Dodge SUV and he was later found heading south on Toledo Blade Blvd. in North Port.

Regular and DUI Officers stopped and arrested him.

One investigating DUI officer claims Bush had bloodshot and watery eyes, slow body movements, slurred speech, smelled of alcohol and was unsteady on his feet.

Bush initially refused to take a blood test, but did so after being informed of the severity of the crash. He also allegedly blew .180% and .171% during subsequent breath test estimations.

The 26 year old has previous DUI charges in California and Arizona.

The report allegedly states Bush said to officers he purportedly has "a serious alcohol problem and how he will be unable to play baseball."

Bush allegedly told investigators he was coming home from Sarasota while shopping at a mall and had "stopped and bought a few" and "kept driving."

An FHP trooper asked Bush if the incident was a serious awakening, and Bush allegedlyreplied it wasn't and he had "already been there."

Bush allegedly admitted to hitting a pole earlier in the day in Sarasota, and he said he didn't see the motorcycle or remember hitting it.

Bush is facing charges of Fleeing the Scene with Serious Injuries, Driving with a Suspended License with Serious Injuries, DUI with Serious Injuries, and DUI with Property Damage. He remains in jail without bond.

Bush, the San Diego Padres selected with the No. 1 pick of the 2004 draft, has spent time in rehabilitation. It may be time to find a more effective private treatment program.

After celebrating at Hooley’s Irish Pub & Grill in Rancho San Diego Saturday night for St. Patrick's Day, Jenifer Peckham helped herself to a bus paid for by the bar to take home drunk customers.

She was allegedly very drunk, stepped out to talk to San Diego County sheriff’s deputies, then climbed into the driver’s seat and drove the bus away, according to San Diego DUI lawyers.

San Diego DUI Deputies pulled her over right away and and arrested her. The lady went to jail for the San Diego California DUI and auto theft arrest, say San Diego DUI attorneys.

The City of Escondido allegedly utilized California-financed San Diego DUI checkpoints for deporting aliens and undocumented immigrants.

1,800 vehicles trapped in an Escondido DUI checkpoint from 6 p.m. March 9 Friday to midnight in vicinity of Valley Parkway and Juniper Street resulted in 4 drunk driving arrests.

Escondido maintains it changed its Drunk Driving roadblock practice earlier this year after a new state law regulating vehicle impounds took effect. But immigrant advocates remain rankled by the practice.

Escondido has a population of 145,000, 49 percent of whom are Latino. In the past several years, the city council has enacted ordinances and legislation directly targeting the growing Latino and undocumented-immigrant population.

In 2006, landlords were banned from renting to anyone without proof of legal residency – a restriction quickly struck down by the courts as unconstitutional. Soon after, restrictions on food carts and parking in Latino neighborhoods were proposed. Tension between the city and the Latino and immigrant population escalated.
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Then in 2010, Escondido police joined efforts with ICE in an exclusive agreement known as “Operation Joint Effort.” This close association helped Escondido police use ICE during DUI checkpoints to check for immigration status.

The checkpoints net about 10 unlicensed drivers for every drunk driver; and the vast majority of unlicensed drivers are undocumented immigrants.

In the past three years, Escondido and tow companies with city contracts have pulled in $11 million in fees, citations and auctioned vehicles from checkpoints.

According to ICE, Escondido is the only city in the country to have a special agreement to notify ICE agents about illegal immigrant suspects. ICE agents have an office at the Escondido Police Department and are on standby during sobriety checkpoints.

The State of California’s Office of Traffic Safety (OTS) provides grants to fund DUI checkpoints throughout California. Escondido Police insist that checking a driver’s license at DUI checkpoints is mandatory in order to qualify for state grants. But an OTS spokesman said that they “do not penalize a grantee for not checking (a driver’s license).”

According to Escondido resident Bill Flores, a retired assistant sheriff for San Diego County, the checkpoints unfairly target immigrants.

“It is a way for the police department to make it so hard for them to live here that they will move somewhere else,” he said.

No one from the Escondido mayor's office, nor from police headquarters, responded to a request for an additional interview or comment on this story.

One of the conditions of the OTS grant program, which awards $350,000 per year to Escondido, is that profits cannot be generated from checkpoints. Also, by law the state of California does not allow police agencies to make a profit from towing cars; only to recoup expenses.

Yet an extensive review of city and police documents reveals that Escondido has been profiting immensely from both state-funded DUI checkpoints and towing of cars.

In order to be able to tow vehicles for the city of Escondido, a tow company had to pay the city $25,000 in 2004. By 2007, the fee was up to $50,000; and by 2011, it reached $100,000. After tow companies demanded justification for the steep increase, the city recently reduced the fees. Each of the six tow companies now pays the city $75,000, a total of $450,000 per year.

There’s a reason that tow companies are willing to pay so much to be included. During the past eight years of state-funded DUI checkpoints, they made millions of dollars.

On average, 5,000 vehicles were towed each year from 2004 to 2011. Unlicensed drivers in Escondido were being caught by the thousands and each one represented an impound fee, a tow hitch fee, and a 30-day impound storage fee totaling about $2,000 per vehicle.

In 2007, according to Escondido Police documents, the department considered starting their own city-run tow yard so that they could keep most of the revenue. Escondido abandoned the venture, but it was clear that the city was interested in increasing profits from state-funded checkpoints and the towing of cars – profits that are illegal.

State law requires that Escondido police justify tow fees and bill the tow companies only to recoup the direct costs of towing cars. In order to substantiate the $450,000 they receive from the tow companies, the Escondido police department has had to employ what some label creative accounting.

A 2011 city report lists as towing expenses items such as bulletproof vests, weapons and wear and tear on police radios, cell phones and vehicles. These line items represent at least 60 percent of expenses for the towing program.

To justify raising tow-contract fees, the Escondido Police Department has also reported that the amount of labor involved in a tow has substantially increased. According to 2004 and 2007 tow-program reports, the department said it would take a total of 33 minutes of labor to tow a vehicle, including paperwork. But by 2011, the police department claimed it took 187.5 minutes.

Marcos Ramirez, a retired sergeant who handled traffic safety for the San Diego County Sheriff’s department, said this doesn’t add up.

“There is no need to bill for so much time to tow a vehicle,” said Ramirez. “Either Escondido is looking to pad their books, or they don’t know how to tow a car. If it took my officers that long to tow a vehicle, they would be fired.”

In addition to collecting $450,000 a year from tow companies as well as the $350,000 in grant money from the OTS, Escondido also collects a $180 impound fee from the owner of each car. For the ICE-related tows, that amounts to an average of about $500,000 a year.

Yet, the state grant for DUI checkpoints is all-inclusive, intended to cover officer labor time and equipment. It would appear therefore that Escondido is making an illegal profit off of every checkpoint tow.

This past year, Escondido reduced its impound fees from $180 to $100 for cars that were towed from OTS checkpoints. Repeated requests were made for documents justifying the reduction in fees. But Escondido officials say the documents do not exist.

San Diego area police often do not perform timely DUI accuracy checks on hand-held breath test gadgets called PAS tests every 10 days or 150 subjects whichever comes first, as required by California's Code of Regulations.

This writer this week has experienced 2 DUI cases where the San Diego county area police dropped the ball on maintenance & calibration. The CHP's own form even states it should be done. But do cops do it? Or do they sometimes fail? The latter.

San Francisco Police Department's recent DUI evidence problem involves numerous DUI arrests and convictions which are now in issue since SFPD was using equipment that wasn't in working order.

SF Public Defender attorney Jeff Adachi revealed 6 years' worth of DUI convictions cases that could be dismissed.

The hand-held breath test gadgets, Preliminary Alcohol Screening devices, were not properly tested or calibrated by DUI police, who have yet to explain why not.

Even though judges routinely admit these results - often without timely foundational objections by DUI lawyers - these gadgets aren't the Implied Consent big Breathalyzer tests.

These are not the only way DUI cops get probable cause to make a DUI arrest, either.

Maybe a thousand or so cases handled by the Public Defender's lawyers alone are potentially impacted.

The District Attorney has yet to release an estimate, but it handles 100's of DUI cases annually. I bet the PAS is used in most of those California DUI cases.

California is an implied consent state so you have to take a big breath or blood test at jail or station if arrested. If you wisely deny the option of taking a PAS test, cops will usually still arrest you as they've already made their decision. So why take the optional PAS test unless required to do so if on probation or under 21. Your attorney is better served not having to waste time fighting excessive amount of optional and unreliable tests.

Kansas police stop is illegal in the criminal court when 2 of the 3 brake lights are working, per language in court case, say DUI attorneys. [Martin v. KDR, 285 Kan. 625, 176 P.3d 938 (2008)]

New Jersey Title 39 requires only a total of two functioning tail lights on each side and therefore the malfunctioning of a surplus lamp does not give rise to a reasonable suspicion of a motor vehicle code violation, regardless of officer’s mistaken view of the law. [State v. McDade, 2009 WL 804636 (2009)]

Third Brake Light out not reasonable suspicion for officer to stop a vehicle, arrest for DUI or admit any drunk driving evidence in Arizona, say DUI lawyers there. Recent AZ Drunk Driving case as follows:

In State of Arizona v. Fikes, --- P.3d ----, 2011 WL 6318947 (Ariz.App. Div. 2) a police officer observed that the brake light located at the top rear of Fikes's vehicle was not working and stopped him for violating A.R.S. § 28–939. The vehicle's two other brake lights were working. The officer observed no other traffic infractions, nor did the officer articulate any other reason for the stop. After stopping the vehicle, the officer discovered Fikes had been driving under the influence of alcohol. Fikes moved to suppress all of the evidence obtained from the traffic stop on the grounds the officer lacked reasonable suspicion to make the stop. The trial court denied the motion and evidence of the investigation was presented at trial. After Fikes was convicted and sentenced, he appealed.

On appeal, the defendant claimed that the statute only required one working stop lamp, and he had 2 of 3 in working condition. The statutes read that: “A person ... shall not drive a vehicle on the highways unless it is equipped with a stop lamp that meets the requirements of § 28–939.” A.R.S. § 28–927. Section 28–939 is titled “Signal Lamps and Devices,” sets forth some technical requirements for stop and other lamps, and provides in relevant part: “If a vehicle is equipped with a stop lamp or other signal lamps, the lamp or lamps shall: 1. Be maintained at all times in good working condition. 2. Not project a glaring or dazzling light.”

The court found that the statute only required one working lamp, and so they reversed the conviction. At oral argument, the state contended the legislature could have wanted to require all installed stop lamps to work because a non-functioning stop lamp could confuse other drivers. In response, the court wrote:

"However, the legislative history does not indicate that the legislature was concerned with this possibility. And nothing in the record indicates any other driver was or could have been confused here. The state also claimed this decision could discourage police officers from stopping dangerous vehicles under a public-safety or community-welfare exception. See, e.g., State v. Mendoza–Ruiz, 225 Ariz. 473, 240 P.3d 1235 (App.2010); State v. Organ, 225 Ariz. 43, 234 P.3d 611 (App.2010). But the officer here did not testify that he was motivated by public safety or community welfare."
-------------------------------------

Court of Appeals of Arizona,
Division 2, Department A.
The STATE of Arizona, Appellee,
v.
Aaron Raymond FIKES, Appellant.
No. 2 CA–CR 2011–0124.
Dec. 16, 2011.
Appeal from the Superior Court of Pima County; Cause No. CR20102760001; Honorable Deborah Bernini, Judge. VACATED AND REMANDED.
Thomas C. Horne, Arizona Attorney General by Kent E. Cattani and David A. Sullivan, Tucson, Attorneys for Appellee.

Law Office of Lawrence Y. Gee, P.L.L.C. by Lawrence Y. Gee, Tucson, Attorney for Appellant.
OPINION
HOWARD, Chief Judge.

*1 ¶ 1 After a jury trial, appellant Aaron Fikes was convicted of aggravated driving under the influence and aggravated driving with a blood alcohol concentration of .08 or higher, both with a suspended license. The trial court sentenced him to concurrent terms of four months' imprisonment followed by three years' probation. On appeal, Fikes argues the court erred in denying his motion to suppress evidence obtained during a warrantless stop of the vehicle he was driving, claiming the stop was not supported by reasonable suspicion. Because we find the police officer lacked a reasonable suspicion to stop Fikes, we reverse.

Factual and Procedural Background
¶ 2 “When reviewing a trial court's denial of a motion to suppress, we consider only the evidence presented at the suppression hearing.” State v. Blakley, 226 Ariz. 25, ¶ 5, 243 P.3d 628, 630 (App.2010). The relevant facts are undisputed. A police officer observed that the brake light located at the top rear of Fikes's vehicle was not working and stopped him for violating A.R.S. § 28–939. The vehicle's two other brake lights were working. The officer observed no other traffic infractions, nor did the officer articulate any other reason for the stop. After stopping the vehicle, the officer discovered Fikes had been driving under the influence of alcohol. Fikes moved to suppress all of the evidence obtained from the traffic stop on the grounds the officer lacked reasonable suspicion to make the stop. The trial court denied the motion and evidence of the investigation was presented at trial. After Fikes was convicted and sentenced, he appealed.

Discussion
¶ 3 Fikes argues that, because Arizona law requires that a vehicle be equipped with only a single brake light, when a vehicle is equipped with more than one light, A.R.S. § 28–939 requires that only one light be operational. He contends that, because he had two working brake lights, the officer lacked reasonable suspicion of criminal activity to stop him for the single light that was not working. When reviewing a trial court's denial of a motion to suppress, we accept the court's factual findings absent an abuse of discretion, State v. Valle, 196 Ariz. 324, ¶ 6, 996 P.2d 125, 127 (App.2000), but when an issue involves the interpretation of a statute, we review that issue de novo, State v. Gonzalez, 216 Ariz. 11, ¶ 2, 162 P.3d 650, 651 (App.2007).

¶ 4 Police officers may “stop and detain” any person for an actual or suspected violation of Title 28. A.R.S. § 28–1594. However, “[a]n investigatory stop of a vehicle constitutes a seizure under the Fourth Amendment.” State v. Fornof, 218 Ariz. 74, ¶ 5, 179 P.3d 954, 956 (App.2008). Such a seizure is constitutionally permissible only if the officer has a reasonable suspicion of criminal activity. State v. Teagle, 217 Ariz. 17, ¶ 20, 170 P.3d 266, 271–72 (App.2007).

¶ 5 “A person ... shall not drive a vehicle on the highways unless it is equipped with a stop lamp that meets the requirements of § 28–939.” A.R.S. § 28–927. Section 28–939 is titled “Signal Lamps and Devices,” sets forth some technical requirements for stop and other lamps, and provides in relevant part: “If a vehicle is equipped with a stop lamp or other signal lamps, the lamp or lamps shall: 1. Be maintained at all times in good working condition. 2. Not project a glaring or dazzling light.”

*2 ¶ 6 “The court's chief goal in interpreting a statute is ‘to fulfill the intent of the legislature that wrote it.’ “ Bilke v.. State, 206 Ariz. 462, ¶ 11, 80 P.3d 269, 271 (2003), quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). When the language is clear, the court may not consider other methods of statutory interpretation “unless application of the plain meaning would lead to impossible or absurd results.” Id. If a statute is ambiguous, we consider “the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose.” Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). However, we may not construe part of a statute in a way that would render any other part of the statute “ ‘void, superfluous, contradictory or insignificant.’ “ State v. Larson, 222 Ariz. 341, ¶ 14, 214 P.3d 429, 432 (App.2009), quoting Pinal Vista Props., L.L.C. v. Turnbull, 208 Ariz. 188, ¶ 10, 91 P.3d 1031, 1033 (App.2004).

¶ 7 The plain language of § 28–927 requires a vehicle to have only one stop lamp meeting the requirements of § 28–939. See § 28–927 (unlawful to drive on highways unless vehicle “equipped with a stop lamp”). Unlike “stop lamp,” “signal lamps” is a term used generically in the statute and includes the term stop lamps. See § 28–939 (entitled “Signal lamps and devices”), (B) (turn signal described as “signal lamp or lamps indicating the intention to turn”). However, in § 28–939(B) the word “other” before “signal lamp” indicates that “other signal lamps” does not include the previous itema stop lamp. Cf. Speros v. Yu, 207 Ariz. 153, ¶¶ 20–21, 83 P.3d 1094, 1099 (App.2004) (“other tract of land,” in city code's reference to “exterior boundary of a subdivision or other tract of land,” distinguished subdivisions from other land tracts). As a result, the statute does not necessarily require that all installed stop lamps be kept in good working condition. We already have determined that § 28–927's requirement that a vehicle be equipped with “a stop lamp” means one stop lamp. Therefore, using the same meaning in the maintenance provision of § 28–939, only one stop lamp need “[b]e maintained at all times in good working condition.” See § 28–939(B)(1); Obregon v. Indus. Comm'n, 217 Ariz. 612, ¶ 21, 177 P.3d 873, 877 (App.2008).

¶ 8 On the other hand, we note the same sentence which requires “a stop lamp” to be maintained at all times also requires that “a stop lamp ... not project a glaring or dazzling light.” FN1 § 28–939(B)(1), (2). Consistency with our interpretation above would imply that § 28–939(B)(2) requires only a single stop lamp to not cause glare to nearby drivers. See Obregon, 217 Ariz. 612, ¶ 21, 177 P.3d at 877. But the legislature would have intended that no lamp or light create glare, impairing other drivers. Thus, we conclude the statute is ambiguous.

FN1. Fikes notes the requirement that a stop lamp “not project a glaring or dazzling light” is not at issue in this appeal. However, when interpreting statutory provisions we will consider them within the context of related provisions. Cicoria v. Cole, 222 Ariz. 428, ¶ 14, 215 P.3d 402, 405 (2009).


*3 ¶ 9 When a statute is ambiguous, we “ ‘may consider both prior and subsequent statutes in pari materia.’ “ Sweet, 143 Ariz. 266, 270, 693 P.2d 921, 925 (1985), quoting Automatic Registering Mach. Co. v. Pima Cnty., 36 Ariz. 367, 373–74, 285 P. 1034, 1036 (1930). Before 1997, § 28–939(B) stated, “When a vehicle is equipped with a stop lamp or other signal lamps, such lamp or lamps shall at all times be maintained in good working condition. No stop lamp or signal lamp shall project a glaring or dazzling light.” 1950 Ariz. Sess. Laws 1st Spec. Sess., ch. 3, § 133; 1996 Ariz. Sess. Laws, ch. 76, §§ 3, 312. In this version, the legislature chose to distinguish between requiring a stop lamp be maintained and prohibiting all stop lamps from projecting a glaring light. See Egan v. Fridlund–Horne, 221 Ariz. 229, ¶ 37, 211 P .3d 1213, 1223 (App.2009) (when legislature uses different words in statute, it intends different meanings). Applying the same analysis as we used above, “a stop lamp” requires only one stop lamp be maintained and because the prohibition against glare is separate, no ambiguity is injected.

¶ 10 In 1995, the Arizona Legislature repealed and replaced Title 28 with the language present in the statute today.FN2 1995 Ariz. Sess. Laws, ch. 132, §§ 1, 3. The descriptive phrase of the bill was “title 28 technical rewrite” and the Senate Research Analyst categorized it as “the technical portion of the Title 28 Technical Rewrite legislation.” S. Transp. Comm. Minutes, 42d Leg., 1st Reg. Sess. (Ariz. Feb. 16, 1995).

FN2. Although passed in 1995, Senate Bill 1364 took effect “from and after December 31, 1996.” 1995 Ariz. Sess. Laws, ch. 132, §§ 3, 12. One of the effects of S.B. 1364 was a renumbering of all of the Transportation Statutes. Id. (enacting current § 28–939 as A.R.S. § 28–3179). However, before S.B. 1364 took effect, the legislature passed S.B. 1076 which reverted to the old numbering but did not make any changes to the text of § 28–939. 1996 Ariz. Sess. Laws, ch. 76, § 18. Therefore, although S.B. 1364 is the most recent modification, we need not consider it in our analysis.


¶ 11 Statements of non-legislators may be relied upon if there are “ ‘sufficient guarantees that the statements reflect legislators' views.’ “ Ballesteros v. Am. Standard Ins. Co. of Wisc., 226 Ariz. 345, ¶ 20, 248 P.3d 193, 197–98 (2011), quoting Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 269–70, 872 P.2d 668, 673–74 (1994). Here, the comments were made by the legislative analyst, not simply a member of the public. And no other comments made at the hearing suggest the legislation would effect a substantive change on the law. S. Transp. Comm. Minutes, 42d Leg., 1st Reg. Sess. (Ariz. Feb. 16, 1995). Thus, we may rely on these minutes as an indication that the legislature intended the 1995 legislation to make technical, not substantive, changes to the statute. Therefore, § 28–939(B)(1), like its predecessor, requires only one stop lamp be maintained.

¶ 12 We recognize that our construction of § 28–939 requires that “a stop lamp” means “one stop lamp” for the purposes of maintenance and “any stop lamp” for the purposes of controlling glare. However, upholding legislative intent is our primary goal. Bilke, 206 Ariz. 462, ¶ 11, 80 P.3d at 271. Nor will we place great significance on the distinction between the two provisions merely because the legislature has used inartful language. Cf. Washburn v. Pima Cnty., 206 Ariz. 571, ¶¶ 12–14, 81 P.3d 1030, 1035 (App.2003) (difference between county and municipal zoning enabling acts did not evince different intentions by legislature). If our construction is in error, the legislature is free to correct our mistake.

*4 ¶ 13 The state nevertheless notes that § 28–939(B) refers to “a stop lamp or other signal lamps” as “the lamp or lamps.” The state contends the phrase “the lamp or lamps” applies to both “a stop lamp” and “other signal lamps.” Based on this construction, the state then argues the legislature contemplated the possibility of more than one stop lamp and intended that all be maintained. However, nowhere in the statute is stop lamp referred to in the plural. § 28–939. And, as we already have discussed, “other signal lamps” refers to lamps other than stop lamps and so does not include additional stop lamps.

¶ 14 The state also points to a requirement in article 16 that “other equipment” be maintained “in proper condition and adjustment as required in this article.” A.R.S. § 28–921(A)(1)(b). But that provision is limited by the phrase “as required by this article.” The only statute in article 16 that speaks to the maintenance of stop lamps is § 28–939. And, as discussed, § 28–939 requires that only one stop lamp be maintained. Therefore, Fikes's top rear stop lamp, although not working, did not violate any of the requirements of article 16.

¶ 15 At oral argument, the state contended the legislature could have wanted to require all installed stop lamps to work because a non-functioning stop lamp could confuse other drivers. However, the legislative history does not indicate that the legislature was concerned with this possibility. And nothing in the record indicates any other driver was or could have been confused here. The state also claimed this decision could discourage police officers from stopping dangerous vehicles under a public-safety or community-welfare exception. See, e.g., State v. Mendoza–Ruiz, 225 Ariz. 473, 240 P.3d 1235 (App.2010); State v. Organ, 225 Ariz. 43, 234 P.3d 611 (App.2010). But the officer here did not testify that he was motivated by public safety or community welfare. And § 28–921(A)(1)(a) prohibits any vehicle from being driven in an unsafe condition. Therefore, we need not decide the relevance of public-safety or community-welfare concerns in this case.

¶ 16 Because the officer lacked reasonable suspicion to stop Fikes, the evidence gathered from the stop was admitted improperly. Although Arizona recognizes a “good faith” exception to the exclusionary rule, the burden lies with the state to prove that the exception applies. State v. Crowley, 202 Ariz. 80, ¶¶ 32, 38, 41 P.3d 618, 629–30 (App.2002). Here, the state did not argue a good faith exception could prevent this evidence from being suppressed, so we will not consider the applicability of that exception.

Conclusion
¶ 17 For the foregoing reasons, we find the trial court erred in denying Fikes's motion to suppress. We vacate Fikes's convictions and sentences and remand this case for further proceedings consistent with this decision.

CONCURRING: PETER J. ECKERSTROM, Presiding Judge, and J. WILLIAM BRAMMER, JR., Judge.



Ariz.App. Div. 2,2011.
State v. Fikes
--- P.3d ----, 2011 WL 6318947 (Ariz.App. Div. 2)



CAL. VEH. CODE § 24603 : California Code - Section 24603

Every motor vehicle which is not in combination with any other vehicle and every vehicle at the end of a combination of vehicles shall at all times be equipped with stoplamps mounted on the rear as follows:

(a)Every such vehicle shall be equipped with one or more stoplamps.

(b)Every such vehicle, other than a motorcycle, manufactured and first registered on or after January 1, 1958, shall be equipped with two stoplamps, except that trailers and semitrailers manufactured after July 23, 1973, which are less than 30 inches wide, may be equipped with one stoplamp which shall be mounted at or near the vertical centerline of the trailer. If such vehicle is equipped with two stoplamps, they shall be mounted as specified in subdivision (d).

(c) Except as provided in subdivision (h), stoplamps on vehicles manufactured on or after January 1, 1969, shall be mounted not lower than 15 inches nor higher than 72 inches, except that a tow truck, in addition to being equipped with the required stoplamps, may also be equipped with two stoplamps which may be mounted not lower than 15 inches nor higher than the maximum allowable vehicle height and as far forward as the rearmost portion of the driver's seat in the rearmost position.

(d)Where two stoplamps are required, at least one shall be mounted at the left and one at the right side, respectively, at the same level.

(e)Stoplamps on vehicles manufactured on or after January 1, 1979, shall emit a red light. Stoplamps on vehicles manufactured before January 1, 1979, shall emit a red or yellow light. All stoplamps shall be plainly visible and understandable from a distance of 300 feet to the rear both during normal sunlight and at nighttime, except that stoplamps on a vehicle of a size required to be equipped with clearance lamps shall be visible from a distance of 500 feet during such times.

(f)Stoplamps shall be activated upon application of the service (foot) brake and the hand control head for air, vacuum, or electric brakes. In addition, all stoplamps may be activated by a mechanical device designed to function only upon sudden release of the accelerator while the vehicle is in motion. Stoplamps on vehicles equipped with a manual transmission may be manually activated by a mechanical device when the vehicle is downshifted if the device is automatically rendered inoperative while the vehicle is accelerating.

(g)Any vehicle may be equipped with supplemental stoplamps mounted to the rear of the rearmost portion of the driver's seat in its rearmost position in addition to the lamps required to be mounted on the rear of the vehicle. Supplemental stoplamps installed after January 1, 1979, shall be red in color and mounted not lower than 15 inches above the roadway. The supplemental stoplamp on that side of a vehicle toward which a turn will be made may flash as part of the supplemental turn signal lamp.

A supplemental stoplamp may be mounted inside the rear window of a vehicle, if it is mounted at the centerline of the vehicle and is constructed and mounted so as to prevent any light, other than a monitorial indicator emitted from the device, either direct or reflected, from being visible to the driver.

(h)Any supplemental stoplamp installed after January 1, 1987, shall comply with Federal Motor Vehicle Safety Standard No. 108 (49 C.F.R. 571.108). Any vehicle equipped with a stoplamp which complies with the federal motor vehicle safety standards applicable to that make and model vehicle shall conform to that applicable safety standard unless modified to comply with the federal motor vehicle safety standard designated in this subdivision.

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This police brutality video features a famous Woody Guthrie version of “This Land is Your Land” plays as a police officer officer strikes a person over and over.

On September 25, 2011 Police were called to the Last Day Saloon to a report of an unwanted person, allegedly Flournoy. Bar peeps maintain he was kicked out after he pushed someone, returned and refused to leave. Officer Diaz arrived to find him walking west on Fifth Street with two other men, Goecke and Jeffrey White.

Diaz stopped Flournoy, asked him to sit on the bumper of his patrol car and began questioning him. Flournoy did it but then jumped to his feet and faced Diaz when White turned on his cellphone camera.

Diaz grabbed his arm and struggled with Flournoy before putting him on the ground and trying to get handcuffs on him. 2 other cops arrived to detain White & Goecke.

Flournoy resisted. The officer issued what he called “distraction blows,” punching the man twice in the face as he lay on the pavement. He struck him in the back and punched him in the rib cage when Flournoy looked like he was trying to get up.

Flournoy claims he complied with the officer's orders. The response was unreasonable so he is petitioning the court to have the charges tossed out on grounds the officers used excessive force.

The video concludes with a request for witnesses to call California criminal defense attorney Omar Figueroa.

Sonoma County prosecutors now are seeking a court order to remove two videos posted on the Internet that appear to show a Santa Rosa police officer pummeling this West County artist during an arrest.

Deputy District Attorney Andrew Lukas has requested that lawyers for Thomas Flournoy, 49, who was charged with obstructing officers, be forced to take down the videos posted on YouTube.

One of the videos of the September confrontation shows Flournoy face down on the street with Officer Christopher Diaz on top of him, repeatedly punching him in the face, back and side. Two other officers are holding Flournoy down.

In court papers, Lukas said the videos depict only a limited view of what happened in the Railroad Square incident and could influence potential jurors in an expected misdemeanor trial.

Also, Lukas suggested lawyers Omar Figueroa and Heather Burke acted inappropriately in posting one of the videos, which is set to music, calls for witnesses and features Figueroa's contact information.

“The facts of this case ... should be decided in the courtroom, not based on a partial, manipulated portrayal of events,” Lukas said in his 12-page motion seeking a court order to remove the video from the Internet.

Figueroa and Burke, the lawyer for co-defendant Kevin Goecke, 38 of Sebastopol, declined to discuss the prosecutor's allegations against them.

But Figueroa has hired famed San Francisco defense lawyer Tony Serra, who vowed a “vigorous defense against the proposed gag order.”

Serra denied Figueroa posted the videos but said through an assistant Thursday that they are a legitimate exercise of state bar-sanctioned conduct to locate witnesses.

Further, he said the videos are protected under the First Amendment. He accused prosecutors of trying to block Flournoy's due process rights “by chilling defense advocacy.”

But Lukas argued in his court papers that the video, with its slow-motion replay and dubbed music, will interfere with his ability to prosecute the case.

Pretrial publicity already has caused a juror in an unrelated case to express an opinion that the officer in Flournoy's arrest used excessive force, Lukas said.

“The music, the pace of the video, the limited aspect of the encounter shown and the description of the actions as police brutality serve to frame the incident from an obvious defense perspective,” Lukas said.

The videos apparently were made by White. The first is more than nine minutes long. As an officer strikes Flournoy and yells, “Stop resisting,” another voice, presumably White, can be heard saying, “Oh, Jeez. I'm so glad I have this on film.”

It's typical that the District Attorney prosecutor does not want anyone to see the truth on video. Video makes it more difficult for police to lie under oath.

Without a video, San Diego DUI criminal defense lawyers may suggest the police likely would expediently employ premade templates and rehearsed lines like "officer safety" They could otherwise claim they were in fear for their lives, right? Aren't we glad this is on film.

San Diego DUI attorneys are told that last week San Diego Police Officer James Zirpolo was found not liable in federal court for allegedly using excessive force against a man in a wheelchair.

A San Diego DUI checkpoint in College Area results in 3 San Diego Police Department drunk driving arrests on February 11th and 12th, 2012, DUI lawyers are told today.

San Diego Police Department and San Diego State University officers put up a DUI roadblock / drunk driving checkpoint at 5800 block of Montezuma Road from 10:30 p.m. Saturday to 2:30 a.m. Sunday, report San Diego DUI attorneys.

1 of the 3 San Diego DUI suspects was also charged with possession of narcotics for sale. 2 drivers received citations for driver's license related offenses.

4 vehicles were impounded: 2 from the San Diego DUI arrests and 2 for driver's license violations.

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Look at this new San Diego DUI checkpoint location last Saturday night at 41st & El Cajon.

San Diego County DUI Law Center features a free map of San Diego DUI Sobriety Checkpoints including the most recent DUI Checkpoint locations in San Diego California. Click above title for help by this San Diego DUI Checkpoint Lawyer.

San Marcos San Diego County Sheriff’s Department DUI patrols will be featured on Super Bowl Sunday, February 5, 2012, say local Drunk Driving criminal defense attorneys.

While it's illegal to be driving DUI in San Diego California and it may be illegal to operate a boat or a personal watercraft while you are under the influence of alcohol or other drugs, but you won't lose your driver's license over it, attorneys qualify.

The California Department of Motor Vehicles (DMV) has agreed to pay $5.6 million to 753 vessel operators for suspending their vehicle driver's licenses because they were convicted of boating under the influence (BUI.

A Los Angeles court ruled in 2007 that the DMV did not have legal authority to suspend the licenses of those convicted of BUIs. The DMV stopped the practice in 2008, but not before a class action lawsuit was brought against the DMV "to vindicate the rights of California motorists."

Although you won't lose your driver's license, a California BUI can still have serious consequences. BUI convictions can be placed on your driving record, and used to enhance a DUI sentence if you are convicted of a motor vehicle DUI. In San Diego, lawyers will tell you that you are also subject to the same penalties as a DUI, such as jail time and hefty fines and fees.

In San Diego, many people who get DUI convictions do not do what they are supposed to do. Attorneys provide the paperwork showing program, MADD, jail, public service but sometimes people don't do everything ordered in a timely manner. Click on this lawyer site if you need to know what to do if you have a DUI warrant out for your arrest.

Every single day, B-2 of the San Diego Union-Tribune Newspaper lists a baker's dozen of crime victims. It is a rare exception that such crimes are not committed by veteran criminals.

San Diego County Sheriff William Gore says, as of November 11, 2011, there were 66,730 arrest warrants outstanding here.

The Department was quick to add the perspective that even that huge number of warrants is less than the same date of the year before when the number was 71,340. So some progress is being made.

The system reports that 43% percent or 28,433 are "bench warrants." Those are orders issued by judges when a defendant simply fails to appear in court as ordered, or fails to comply with some term or condition of probation.

Over 17,000 of the warrants were for felonies. Felonies can be dangerous as in murder, robbery, rape, burglary and battery. Or they can be drug violations of the Health and Safety Code, not likely to affect us directly.

But still, 17,000 felons running loose in our county is frightening.

Nearly an equal number of misdemeanor warrants are outstanding. We can take no comfort in misdemeanors being "lesser crimes" than felonies.

The most common misdemeanors are DUI / drunk driving and domestic violence enormously serious problems in themselves.

San Diego has long been a leader in the effort to improve warrant service.

Long-time readers will remember my crusade as a judge when our warrant balance in this county was an astounding 600,000 and would have been even higher except the courts simply "discharged from accountability" any warrant that was over 5 years old.

We reduced that outrageous balance by recalling the 500,000 that had been foolishly issued for failure to appear on minor traffic matters and turned those over to a collection agency. The county and other local jurisdictions have made millions annually on that decision.

That meant the balance of the warrants were important to the public safety.

The service of warrants in this county, state, and nation remains problematic for several reasons. The law in regards to warrants is vague. Police may serve warrants but are not required to. No agency is statutorily responsible for serving warrants. Judges issue them and then stare at the ceiling hoping that something happens.

As the Sheriff points out, between 4,000 and 5,000 new arrest warrants are issued by the courts each month. Under the weakness in the current law, no police department feels compelled to view warrants with the importance they deserve.

Nor do any public officials seem to care.

The author in the above article is not aware of any letters from the District Attorney, the Presiding Judge, the City Attorney, the Attorney General, or even the Governor urging law enforcement to step up warrant activity or proposing other solutions to the problem of millions of unserved warrants statewide.

If Bonnie Dumanis has written one, I invite her to publish a copy in the Transcript.

I don't know any city council that asks for a monthly report on how their police department is doing keeping warrants in their jurisdiction cleaned up.

I am not aware of any awards for police officers for being the officer who served the most warrants. There are no similar incentives for retention or promotion.

Except for the Sheriff's Court Services Field deputies, there are no officers who consider it a prime element of their job to serve warrants.

There are, from time to time "warrant sweeps' but those efforts are above and beyond the typical duty of a patrol officer and are the exception, not the rule.

Instead patrol officers are encouraged to "preventively patrol' or carry out "community-oriented policing." One is to try to prevent crime by a show of police presence, dubious at best. And the other is community hand holding which is useless.

The best way to fight crime is to arrest criminals. The best way to arrest criminals is to serve warrants and enforce traffic laws with an eye to serving warrants.

Nor is there adequate effort by the state. When fugitives leave the jurisdiction in which they are wanted, they are essentially home free. Other agencies are not aware of warrants from outside their jurisdictions. And even if they were, how are the fugitives to be transported home?

Except for notorious criminals, out of county or state means out of mind.

Both the state and the Federal governments should have warrant enforcement teams and transport systems to facilitate local fugitive apprehension instead of letting one agency dump their trash on others.

There is much to be done to improve warrant enforcement.

Canada's new crime crusade is against DUI or drunk driving, thanks to MADD and breath test estimating gadgets, lawyers believe.

MADD shows again why it's considered probably the most influential interest group in the country as ideological neo-prohibitionists.

In crazed movements, extremists and fanatics often lead the way.

The breath test estimator gave police a relatively non-invasive test purportedly providing results to determine one's BAC.

A BAC or blood-alcohol content of .10% means that 0.10 (one 10th of one per cent) of a person's blood, by volume, is alcohol. In both the US and Canada, the legal limit is 0.08.

Contrary to what MADD suggests, though, this is not the equivalent of fingerprints or DNA. It is controvertible evidence as there are many scientific, physiological and other test issues not always mentioned by MADD

MADD was founded in 1980 in California by Candice Lighter after her 13-year-old daughter was killed by a drunk driver.

In Canada, local activities are carried out by MADD chapters in approximately 100 communities across the country.

MADD has now become neo-prohibitionist. This refers to the belief that the influence of alcohol should be reduced through laws and policies that further restrict the sale and possession of alcohol to reduce consumption.

In other words, they have become the modern version of an old Protestant-based organization, the Woman's Christian Temperance Union. Founded in Cleveland in 1874, the purpose of the Woman's Christian Temperance Union was to create a "sober and pure world" by abstinence, purity and evangelical Christianity. The group was instrumental in bringing about prohibition in the United States in 1919.

The law resulted in the criminalization of producers, suppliers, transporters and consumers of alcohol and allowed gangsters like Al Capone to flourish. It was repealed in 1933.

In 1885, Letitia Youmans founded the Canadian arm of the organization. In 1898, a federal referendum on prohibition was held, receiving 51.3 per cent for and 48.7 per cent against prohibition.

Prime Minister Wilfrid Laurier chose not to move forward. As a result, Canadian prohibition was instead enacted through laws passed by individual provinces during the first 20 years of the 20th century. However, between 1920 and 1925, five provinces voted to repeal prohibition - though Prince Edward Is-land stayed dry until 1948.

But we now have a wave of neo-prohibitionism. While the Criminal Code sets the legal limit of alcohol in the blood at .08, most provinces have created a le-gal grey area, where drivers with a blood-alcohol level above .05 can be fined or lose their licence.

In Ontario, for example, drivers with a level between .05 and .08 face a three-day roadside suspension the first time they're caught, which increases to one month for people who break the rules a third time. Alberta has recently passed a similar bill.

Such laws, which allow police to make roadside DUI stops and test people at random - even those who do not appear drunk - will make it almost impossible to have more than a glass of wine at a party or restaurant. If you do not carry breath-alyzers around with you, why risk losing your license?

In light of the prism of previous crusades. McCarthyism, like MADD, identified a real evil, in the one case, communism, in the other, excessive use of alcohol. But both eventually went too far.

It was one thing during the Cold War to expose a Soviet agent or spy, another to fire from a job some movie actor or teacher who had long ago belonged to a communist front group. There were no degrees of culpability. Informing on people was encouraged. And many a target com-mitted suicide or ended up working as a janitor or clerk for the rest of his or her life.

Today, Canada & the US attempt no longer distinguish between a reckless drunk barrelling down a major thoroughfare at two o'clock in the morning and crashing into a tree, and someone who had slightly more to drink in a restaurant than is legal, and backed into a parked car in a shopping lot at 6: 30 in the evening.

Both are stand to lose their jobs. Both may go to jail. MADD has fuzzied the line.

The anti-DUI scene in San Diego goes to a new level with an'anti-pub crawl' or 'bar-stopping' held by San Diego residents in North Park will gather on Friday evening to walk in protest to the number of alcohol licenses issued to businesses in their community.

This is the 1st of 2 rallies, the other will take place in Pacific Beach aka Party City the following week.

North Park and Pacific Beach folks banded together in 2011 to draw attention to what they say is Alcohol and Beverage Control's (ABC) unbridled policy in issuing alcohol permits, especially to the business districts they say are already saturated with bars and restaurants.

"[Alcohol and Beverage Control's] licensing policy is harming communities. San Diego is the DUI capital of the USA with highest DUI rate in the nation 2 years in a row," reads the flier announcing the walk, which will begin at 5:30pm outside of Birch North park Theater on University Avenue.

One week later, the residents plan to move their protest to Pacific Beach for a walk along Garnet Avenue's bustling entertainment district.

"[Pacific Beach] consistently has the highest rate of violent crime and [North Park] falls just barely behind. [Pacific Beach] has the highest rate of alcohol-related crime and general crime and is top or near the top in nearly all crime categories. This crime is centered around the business district where more and more restaurants are functioning like bars and more and more alcohol licenses are being issued, modified or expanded each year, San Diego drunk driving criminal defense attorneys are reminded.

In addition to what they feel is a permit-happy Alcohol and Beverage Control board, the group also lays blame on SDPD's Vice unit, as well as city councilmembers Todd Gloria and Kevin Faulconer, who represent both North Park and Pacific Beach, San Diego DUI lawyers learned.

"The Alcohol Beverage Control, SDPD vice, and city officials are part of the problem. The police work for the mayor and the mayor and city councilmen are ignoring the problem... and have become part of the problem themselves by endorsing new alcohol licenses, expansions of bar-like restaurants, and modifications to allow serving more alcohol, harder alcohol (not just beer and wine), and for longer hours."

San Diego DUI criminal defense attorneys' clients mostly drink beer (or wine). Well, beer is good for you. And it may help your sex life.

Wine drinkers revel in news red wine protects against heart disease.

Beer can also be good for what ails you, from reducing risk for broken bones to helping warding off diabetes and mental decline. It can even increase longevity, says the new Yahoo article.

The key to tapping into beer’s benefits is moderation, meaning just one 12-ounce beer per day for women and two for men.

Heavy drinking ups the threat of liver damage, some cancers, and heart problems. Beer can also make you fat, since a 12-ounce regular beer has about 150 calories, while light beer has about 100.

Read about common diet myths that are dangerous to your health

Top 10 Healthy things about Beer

1. Stronger Bones

Beer contains high levels of silicon, which is linked to bone health. In a 2009 study at Tufts University and other centers, older men and women who swigged one or two drinks daily had higher bone density, with the greatest benefits found in those who favored beer or wine. However, downing more than two drinks was linked to increased risk for fractures.

For the best bone-building benefits, reach for pale ale, since a 2010 study of 100 types of beer from around the word identified these brews as richest in silicon, while light lagers and non-alcoholic beers contained the least.

2. A Stronger Heart

A 2011 analysis of 16 earlier studies involving more than 200,000 people, conducted by researchers at Italy’s Fondazion di Ricerca e Cura, found a 31 percent reduced risk of heart disease in those who quaffed about a pint of beer daily, while risk surged in those who guzzled higher amounts of alcohol, whether beer, wine, or spirits.

More than 100 studies also show that moderate drinking trims risk of heart attacks and dying from cardiovascular disease by 25 to 40 percent, Harvard reports. A beer or two a day can help raise levels of HDL, the “good” cholesterol that helps keep arteries from getting clogged.

3. Healthier Kidneys

A study in Finland singled out beer among other alcoholic drinks, finding that each bottle of beer men drank daily lowered their risk of developing kidney stones by 40 percent. One theory is that beer’s high water content helped keep kidneys working, since dehydration increases kidney stone risk.

It’s also possible that the hops in beer help curb leeching of calcium from bones; that “lost” calcium also could end up in the kidneys as stones.

4. Boosting Brain Health

A beer a day may help keep Alzheimer’s disease and other dementia at bay, researchers say.

A 2005 study tracking the health of 11,000 older women showed that moderate drinkers (those who consumed about one drink a day) lowered their risk of mental decline by as much as 20 percent, compared to non-drinkers. In addition, older women who downed a drink a day scored as about 18 months “younger,” on average, on tests of mental skills than the non-drinkers.

5. Reduced Cancer Risk

A Portuguese study found that marinating steak in beer eliminates almost 70 percent of the carcinogens, called heterocyclic amines (HCAs) produced when the meat is pan-fried. Researchers theorize that beer’s sugars help block HCAs from forming.

Scientists also have found that beer and wine contain about the same levels of antioxidants, but the antioxidants are different because the flavonoids found in hops and grapes are different.

6. Boosting Vitamin Levels

A Dutch study, performed at the TNO Nutrition and Food Research Institute, found that beer-drinking participants had 30 percent higher levels of vitamin B6 levels in their blood than their non-drinking counterparts, and twice as much as wine drinkers. Beer also contains vitamin B12 and folic acid.

7. Guarding Against Stroke

Researchers at the Harvard School of Public Health found that moderate amounts of alcohol, including beer, help prevent blood clots that block blood flow to the heart, neck and brain—the clots that cause ischemic stroke, the most common type

8. Reduced Risk for Diabetes

Drink up: A 2011 Harvard study of about 38,000 middle-aged men found that when those who only drank occasionally raised their alcohol intake to one to two beers or other drinks daily, their risk of developing type 2 diabetes dropped by 25 percent. The researchers found no benefit to quaffing more than two drinks. The researchers found that alcohol increases insulin sensitivity, thus helping protect against diabetes.

9. Lower Blood Pressure

Wine is fine for your heart, but beer may be even better: A Harvard study of 70,000 women ages 25 to 40 found that moderate beer drinkers were less likely to develop high blood pressure—a major risk factor for heart attack—than women who sipped wine or spirits.

10. Longer Life

In a 2005 review of 50 studies, the U.S. Department of Agriculture (USDA) reported that moderate drinkers live longer. The USDA also estimates that moderate drinking prevents about 26,000 deaths a year, due to lower rates of heart disease, stroke, and diabetes.

These benefits appear to apply in other countries as well, with an earlier study reporting that, “if European beer drinkers stopped imbibing, there would be a decrease in life expectancy of two years—and much unhappiness.”


Don't get a DUI or you'll need a good San Diego California DUI lawyer. Then it becomes less of a matter of health and more of a matter of welfare.

News Release

January 15, 2012

DUC - Driving under influence of cold & DUF - Driving under influence of flu, may be as dangerous as DUI or drunk driving, per UK study, San Diego criminal defense attorneys are told.

United Kingdom drivers are being warned that they could be less capable of driving than they think when they are under the influence of a heavy cold or flu. According to a recent study there was evidence that revealed a driver is impaired during a bad cold or flu as much as if they were heavily drinking prior to getting behind the wheel. Drivers were found to be impaired by over 50 per cent or the equivalent of drinking more than four double whiskies. The driver’s ability to react is impaired and they are less aware of other drivers on the road. They also are in danger of massive distraction should they have a sneezing or coughing fit while driving.

Mark Dolphin, a winter driving expert said, “You shouldn’t drive if you are not feeling well. If you really must go out, get someone else to take you.”

The study warning UK drivers was carried out by Cardiff University’s Common Cold Unit. Many drivers are totally unaware of their inability to properly handle themselves while behind the wheel if they are suffering from a major cold or flu. They should however realize that there can be even more of an impairment should the driver be taking certain kinds of cold medication. Many cold medications do in fact declare that the driver should be cautious when driving or avoid driving altogether, however most drivers do not consider the severity of the warning.

Drivers should avoid endangering themselves as well as others on the road by staying off the road during a bad cold or flu. UK drivers should take the warning to heart and stay safe while they recover, San Diego DUI lawyers are told.

Sons of Movie Stars are not immune to the San Diego DUI court system. Local lawyers are told today a 100,000 bench warrant was issued for star O'Neal's son's arrest.

Griffin O’Neal’s California criminal defense attorney Heather Boxeth maintains he relapsed by drinking alcohol after 5 years of sobriety, contending going to rehab was a responsible thing to do.

Arising out of the San Diego county DUI accident, O'Neal picked up 6 felony and misdemeanor charges: DUI causing injury, possession of a firearm by felon and possession of a controlled substance. Four years in prison is the possible sentence.

O'Neal was on probation for a 2007 DUI conviction when the accident occurred last Aug. 2 about 1 p.m. near San Diego Safari Park.

Toxicology tests allegedly show he had amphetamines, cocaine, marijuana and Xanax in his system at the time of the drunk driving collision.

If a person had her or his license suspended after a San Diego DUI, a traffic officer may not lawfully stop and legally arrest you for driving on a suspended license [California Vehicle Code section 14601 et. seq.] based on cops checking one's license plate e.g. of students going to a DUI course, folks going to a MADD meeting, or anyone moving down the road.

Click on the above Title for the link to this important San Diego DUI attorney article with the language of pertinent Vehicle Code sections 14607.6(b) and 12801.5(e).

State of Nevada v. Eighth Judicial District Court, et. al., --- P.3d ----, 2011 WL 6840685 (Nev.), 127 Nev. Adv. Op. 84 just held that the probative value of retrograde extrapolation that was based on single sample of blood taken more than two hours after a collision was substantially outweighed by the danger of unfair prejudice, and thus precluded its admission at trial.

According to the indictment, the defendant (Armstrong) was driving when his vehicle collided with another vehicle, causing substantial bodily harm to the other driver. The collision occurred at approximately 1:30 in the morning. A single blood sample was taken from Armstrong at 3:51 a.m., more than two hours after the collision. That blood sample had an alcohol level of .18. Armstrong filed a pretrial motion to exclude the blood alcohol test result. He argued that his blood was drawn outside the statutory two-hour window provided in NRS 484C.430(1)(c) FN1 and that the test was inadmissible because only one blood sample was obtained. He further argued that the retrograde extrapolation that the State would have to use to determine his blood alcohol level at the time he was driving was unreliable and therefore irrelevant and unfairly prejudicial. The State opposed the motion, arguing that retrograde extrapolation was not required to determine Armstrong's blood alcohol level at the time of the collision because his alcohol level was sufficiently high that a jury could determine that it was above .08 while he was driving, but even if the State were required to do so, any variables in the retrograde extrapolation go to the weight of that evidence rather than its admissibility. The State also argued that the blood alcohol test was admissible to show that Armstrong was driving under the influence of intoxicating liquor. After a lengthy evidentiary hearing involving the conflicting testimony of two expert witnesses, the district court granted Armstrong's motion in part. The district court excluded retrograde extrapolation as a means of determining Armstrong's blood alcohol level at the time he was driving and the numerical result of the blood alcohol test but allowed the State to present more generalized evidence that the blood test showed the presence of alcohol.



"The evidence at issue in this case involves retrograde extrapolation. Retrograde extrapolation is a “mathematical calculation used to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken.” Com. v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (Mass.2001). The calculation requires information regarding the rates at which alcohol is absorbed and excreted. Those rates can vary based on a number of factors, including: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolerance, and food intake. See Mata v. State, 46 S.W.3d 902, 915–16 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660–61 (Tex.App.2002)."



The State then filed a petition for a writ of mandamus against the judge, seeking to force the judge to admit the retrograde evidence. On appeal, the Supreme Court of Nevada affirmed, finding that even though retrograde extrapolation evidence was relevant, there was a danger of unfair prejudice.



"Some jurisdictions have determined that the admissibility of retrograde extrapolation depends on whether enough factors affecting the calculation are known and have expressed concerns with calculations that rely solely on average rates of absorption and excretion. For example, in Mata v. State, the Texas Court of Criminal Appeals provided some guidance by explaining three factors courts should use in evaluating the reliability of retrograde extrapolation:



(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.


46 S.W.3d 902, 916 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.Sd 657, 660–61 (Tex.App.2002). The court declined to design an “exact blueprint” for all cases and recognized that not every personal fact about the defendant must be known to construct a reliable extrapolation—otherwise “no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process.” Id. at 916–17. The court also indicated that the significance of those personal factors is influenced by the number of blood alcohol samples obtained and the time between multiple samples:

If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's [blood alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.


Id.; see also Burns v. State, 298 S.W.3d 697, 702 (Tex.App.2009) (concluding that expert's testimony was unreliable due to expert's admission that “he knew none of the factors required by Mata when only a single test is available” and because testimony was unreliable, it was irrelevant and “its probative value was greatly outweighed by its prejudicial effect”); accord Com. v. Petrovich, 538 Pa. 369, 648 A.2d 771, 773 (Pa.1994) (upholding trial court's conclusion that retrograde extrapolation expert's testimony was incomplete and elicited “an expert opinion which is necessarily based upon average dissipation rates, average absorption rates, and the alcohol content of the average drink” (internal quotations omitted)). See generally Kimberly S. Keller, Sobering Up Daubert: Recent Issues Arising in Alcohol–Related Expert Testimony, 46 S. Tex. L.Rev. 111, 122–29 (2004) (discussing concern in scientific community over the use of retrograde extrapolation calculations that do not employ factors that affect individual absorption and elimination rates, including (1) the type and amount of food in the stomach, (2) gender, (3) weight, (4) age, (5) mental state, (6) drinking pattern at the relevant time, (7) type and amount of beverage consumed, and (8) elapsed time between the first and last drink taken).

The Court wrote:



"We agree that achieving a reliable retrograde extrapolation calculation requires consideration of a variety of factors. The following factors are relevant to achieving a sufficiently reliable retrograde extrapolation calculation: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) the type and amount of food in the stomach, (7) type and amount of alcohol consumed, (8) when the last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between the first and last drink consumed, (11) time elapsed between the last drink consumed and the blood draw, (12) the number of samples taken, (13) the length of time between the offense and the blood draws, (14) the average alcohol absorption rate, and (15) the average elimination rate. We observe, as the Mata court did, that not every personal fact about the defendant must be known to construct a reliable extrapolation, 46 S.W.3d at 916–17, but rather those factors must be balanced."



"[T]he State and Armstrong presented experts who calculated Armstrong's estimated blood alcohol level based primarily on factors attributed to the “average” person and various hypothetical situations. The factors used in those calculations included: Armstrong's admission to the investigating officer at the scene that he drank two beers between 5 p.m. and 10 p .m., records indicating that Armstrong weighed 212 pounds, the time of the accident, the time of the blood draw, and the blood alcohol level in the single sample (.18). There was no evidence presented concerning Armstrong's age or height, the type and amount of food in his stomach, if any, his regular drinking pattern, or his emotional state after the collision.



Concluding, the Court stated:



"Although several of the factors identified above were known, other significant factors were not and, significantly, only one blood draw was obtained. As the Mata court recognized, the significance of personal factors is influenced by the number of blood alcohol tests. “[A] single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.” Id. at 916. Here, significant personal characteristics, such as the type and amount of food, if any, in Armstrong's stomach—a factor that Armstrong's expert testified was the most important and the State's expert acknowledged significantly affects alcohol absorption—were unknown. And the single blood draw makes it difficult to determine whether Armstrong was absorbing or eliminating alcohol at the time of the blood draw. The admission of retrograde extrapolation evidence when a single blood draw was taken more than two hours after the accident and the extrapolation calculation is insufficiently tethered to individual factors necessary to achieve a reliable calculation potentially invites the jury to determine Armstrong's guilt based on emotion or an improper ground—that the defendant had a high blood alcohol level several hours later—rather than a meaningful evaluation of the evidence. Thus, although relevant, the probative value of the extrapolation evidence could be sufficiently outweighed by this danger of unfair prejudice to preclude its admission.FN5 Under the circumstances presented, we cannot say that the district court manifestly abused or arbitrarily or capriciously exercised its discretion, that is, applied a clearly erroneous interpretation of the law or one not based on reason or contrary to the evidence or established rules of law.



----------------------------------------------------------------------------







Supreme Court of Nevada.

The STATE of Nevada, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK, and The Honorable Stefany Ann Miley, District Judge, Respondents,
and
Bobby Armstrong, Real Party in Interest.

No. 55918.

Dec. 29, 2011.

Background: Defendant in prosecution for driving under the influence (DUI) causing substantial bodily harm filed pretrial motion to exclude retrograde extrapolation as means of determining defendant's blood alcohol level (BAL) at time of charged offense. Following evidentiary hearing, the Eighth Judicial District Court, Clark County, Stefany Ann Miley, J., granted motion in part. State petitioned for writ of mandamus.



Holdings: The Supreme Court, Douglas, J., held that:

(1) retrograde extrapolation evidence is relevant to a DUI charge involving a theory of either being under the influence of an intoxicating liquor or having a BAL of 0.08 or more in one's blood or breath; but

(2) probative value in present case of retrograde extrapolation that was based on single sample of blood taken more than two hours after collision was substantially outweighed by danger of unfair prejudice.



Petition denied.





Pickering, J., filed a dissenting opinion in which Hardesty, J., joined.



West Headnotes


[1] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

The Supreme Court would exercise its discretion to consider merits of state's mandamus petition challenging district court's order, in prosecution for driving under the influence (DUI) causing substantial bodily harm, that excluded retrograde extrapolation as means of determining defendant's blood alcohol level at time of accident and excluded the numerical result of test of blood sample taken over two hours after accident; petition challenged district court's exercise of discretion, state had no other remedy at law because it could not appeal the final judgment in a criminal case, and petition raised important issue of law that needed clarification. West's NRSA 34.160, 34.170, 484C.430(1).


[2] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

A writ of mandamus is available to control a manifest abuse or arbitrary or capricious exercise of discretion. West's NRSA 34.160.


[3] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

Ultimately, the decision to entertain an extraordinary writ of mandamus petition lies within the Supreme Court's discretion, and it must consider whether judicial economy and sound judicial administration militate for or against issuing the writ, including consideration of whether an important issue of law needs clarification and public policy is served by the Supreme Court's invocation of its original jurisdiction. West's NRSA 34.160, 34.170.


[4] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol110 Criminal Law

The admission or exclusion of evidence rests within the district court's sound discretion.


[5] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

In the mandamus context, the Supreme court considers whether the district court's evidentiary ruling was a manifest abuse or arbitrary or capricious exercise of its discretion. West's NRSA 34.160.


[6] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

An arbitrary or capricious exercise of discretion, for which mandamus relief is available, is one founded on prejudice or preference rather than on reason, or contrary to the evidence or established rules of law. West's NRSA 34.160.


[7] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

A manifest abuse of discretion, in context of a mandamus petition, is a clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule. West's NRSA 34.160.


[8] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

Retrograde extrapolation evidence is relevant to a driving under the influence (DUI) charge involving a theory of either being under the influence of an intoxicating liquor or having concentration of alcohol of 0.08 or more in one's blood or breath; such evidence has a tendency to make the existence of a consequential fact, i.e., the level of alcohol in a defendant's blood at a certain point in time, more probable than it would be without the evidence. NRS 48.015, 484C.430(1).


[9] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

Probative value of retrograde extrapolation of defendant's blood-alcohol level (BAL) at the time he was driving was substantially outweighed by danger of unfair prejudice in prosecution for driving under the influence of alcohol (DUI) causing substantial bodily harm; extrapolation was based on single blood sample taken over two hours after accident, experts' estimations of defendant's BAL at time of charged offense were based primarily on factors attributed to the “average” person rather than significant personal characteristics of defendant, and the high BAL of .18 at time of test potentially invited jurors to determine defendant's guilt based on emotion or an improper ground. NRS 48.035(1), 484C.430(1)(a, b).


[10] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol110 Criminal Law

Unfair prejudice, against which probative value of evidence is weighed in determining admissibility, is not limited to decisions based on emotion. West's NRSA 48.035(1).


[11] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

The following factors are relevant in prosecution for driving under the influence of alcohol (DUI) to achieving a sufficiently reliable retrograde extrapolation calculation of a defendant's blood alcohol level when driving: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) type and amount of any food in stomach, (7) type and amount of alcohol consumed, (8) when last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between first and last drink consumed, (11) time elapsed between last drink consumed and blood draw, (12) number of samples taken, (13) length of time between offense and blood draws, (14) average alcohol absorption rate, and (15) average elimination rate. NRS 484C.430(1).


[12] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

Not every personal fact about the defendant must be known in prosecution for driving under the influence of alcohol (DUI) to construct a reliable retrograde extrapolation of a defendant's blood alcohol level at time of alleged offense. NRS 484C.430(1).


[13] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

A single blood-alcohol test conducted some time after charged offense of driving under the influence of alcohol (DUI) can result in a reliable extrapolation of blood alcohol level at time of charged offense only if the expert has knowledge of many personal characteristics and behaviors of the defendant. NRS 484C.430(1).


Original petition for a writ of mandamus or prohibition challenging an order of the district court granting in part the real party in interest's motion to preclude the' introduction of his blood alcohol test results in a prosecution for driving under the influence.
Petition denied.
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Bruce W. Nelson, Deputy District Attorney, Clark County, for Petitioner.

Daniel J. Albregts, Ltd., and Daniel J. Albregts, Las Vegas; Mueller, Hinds & Associates and Craig A. Mueller and Michael J. Morey, Las Vegas, for Real Party in Interest.

BEFORE THE COURT EN BANC.



OPINION

By the Court, DOUGLAS, J.:



*1 In this original writ proceeding, we consider the admissibility of retrograde extrapolation evidence to estimate a defendant's blood alcohol level at a point in time based on a blood sample taken at a later point in time. We conclude that although retrograde extrapolation evidence is relevant in a prosecution for driving under the influence, under certain circumstances such evidence may be unfairly prejudicial and therefore inadmissible. Because the prosecution in this case had to rely on the results from a single blood sample and a number of the factors that affect the mathematical calculation necessary to a retrograde extrapolation were unknown, we cannot conclude that the district court manifestly abused or arbitrarily or capriciously exercised its discretion in concluding that the evidence would be unfairly prejudicial in this case. We therefore deny the petition.



FACTS AND PROCEDURAL HISTORY

The State charged real party in interest Bobby Armstrong with driving under the influence causing death and/or substantial bodily harm under two theories of liability: that he (1) was “under the influence of intoxicating liquor” or (2) had “a concentration of alcohol of 0.08 or more in his ... blood or breath” and did “any act or neglect[ed] any duty imposed by law while driving or in actual physical control” of a vehicle. NRS 484C.430(1) (formerly NRS 484.3795). According to the indictment, Armstrong was driving when his vehicle collided with another vehicle, causing substantial bodily harm to the other driver. The collision occurred at approximately 1:30 in the morning. A single blood sample was taken from Armstrong at 3:51 a.m., more than two hours after the collision. That blood sample had an alcohol level of .18. Armstrong filed a pretrial motion to exclude the blood alcohol test result. He argued that his blood was drawn outside the statutory two-hour window provided in NRS 484C.430(1)(c) FN1 and that the test was inadmissible because only one blood sample was obtained. He further argued that the retrograde extrapolation that the State would have to use to determine his blood alcohol level at the time he was driving was unreliable and therefore irrelevant and unfairly prejudicial. The State opposed the motion, arguing that retrograde extrapolation was not required to determine Armstrong's blood alcohol level at the time of the collision because his alcohol level was sufficiently high that a jury could determine that it was above .08 while he was driving, but even if the State were required to do so, any variables in the retrograde extrapolation go to the weight of that evidence rather than its admissibility. The State also argued that the blood alcohol test was admissible to show that Armstrong was driving under the influence of intoxicating liquor.



After a lengthy evidentiary hearing involving the conflicting testimony of two expert witnesses, the district court granted Armstrong's motion in part. The district court excluded retrograde extrapolation as a means of determining Armstrong's blood alcohol level at the time he was driving and the numerical result of the blood alcohol test but allowed the State to present more generalized evidence that the blood test showed the presence of alcohol. This original petition for a writ of mandamus followed.FN2



DISCUSSION

*2 [1] Description: Headnote Citing References[2] Description: Headnote Citing References[3] Description: Headnote Citing ReferencesA writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, NRS 34.160, or to control a manifest abuse or arbitrary or capricious exercise of discretion, see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603–04, 637 P.2d 534, 536 (1981). The writ will not issue, however, if a petitioner has a plain, speedy, and adequate remedy in the ordinary course of the law. NRS 34.170. Ultimately, the decision to entertain an extraordinary writ petition lies within our discretion, and we must “consider[ ] whether judicial economy and sound judicial administration militate for or against issuing the writ,” Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006), limited on other grounds by Hidalgo v. Dist. Ct., 124 Nev. 330, 341, 184 P.3d 369, 377 (2008), including whether “ ‘an important issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction,’ “ Diaz v. Dist. Ct., 116 Nev. 88, 93, 993 P.2d 50, 54 (2000) (quoting Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998)). The instant petition challenges the district court's exercise of discretion, and the State has no other remedy at law because it cannot appeal the final judgment in a criminal case. NRS 177.015(3) (“The defendant only may appeal from a final judgment or verdict in a criminal case.”). Because the petition raises an important issue of law that needs clarification, we exercise our discretion to consider its merits.



[4] Description: Headnote Citing References[5] Description: Headnote Citing References[6] Description: Headnote Citing References[7] Description: Headnote Citing ReferencesThe admission or exclusion of evidence rests within the district court's sound discretion. Thomas v. State, 122 Nev. 1361, 1370, 148 P.3d 727, 734 (2006). In the context of mandamus, this court considers whether the district court's evidentiary ruling was a manifest abuse or arbitrary or capricious exercise of its discretion. See NRS 34.160; Round Hill, 97 Nev. at 603–04, 637 P.2d at 536. An arbitrary or capricious exercise of discretion is one “founded on prejudice or preference rather than on reason,” Black's Law Dictionary 119 (9th ed.2009) (defining “arbitrary”), or “contrary to the evidence or established rules of law,” id. at 239, 637 P.2d 534 (defining “capricious”). See generally City Council v. Irvine, 102 Nev. 277, 279, 721 P.2d 371, 372 (1986) (concluding that “[a] city board acts arbitrarily and capriciously when it denies a license without any reason for doing so”). A manifest abuse of discretion is “[a] clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule.” Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297, 300 (Ark.1997); see Jones Rigging and Heavy Hauling v. Parker, 347 Ark. 628, 66 S.W.3d 599, 602 (Ark.2002) (stating that a manifest abuse of discretion “is one exercised improvidently or thoughtlessly and without due consideration”); Blair v. Zoning Hearing Hd. of Tp. of Pike, 676 A.2d 760, 761 (Pa.Commw.Ct.1996) ( “[M]anifest abuse of discretion does not result from a mere error in judgment, but occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will.”).



*3 The evidence at issue in this case involves retrograde extrapolation. Retrograde extrapolation is a “mathematical calculation used to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken.” Com. v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (Mass.2001). The calculation requires information regarding the rates at which alcohol is absorbed and excreted. Those rates can vary based on a number of factors, including: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolerance, and food intake. See Mata v. State, 46 S.W.3d 902, 915–16 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660–61 (Tex.App.2002).



[8] Description: Headnote Citing ReferencesRelevance is the first question in determining whether retrograde extrapolation evidence is admissible. See NRS 48.025 (providing that “[a]ll relevant evidence is admissible” unless otherwise excluded by statute or constitutional provision and that “[e]vidence which is not relevant is not admissible”). “ ‘[R]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” NRS 48.015. The district court appears to have concluded that retrograde extrapolation evidence had some relevance to the State's theories that Armstrong was driving under the influence or had a blood alcohol concentration above the legal limit at the time he was driving.FN3 Although we have not addressed the admissibility of retrograde extrapolation as a matter of law, we have alluded to its relevance in prosecutions for driving under the influence. See, e.g., Sheriff v. Burcham, 124 Nev. 1247, 1261, 198 P.3d 326, 335 (2008) (holding that State was not required to present retrograde extrapolation evidence to obtain grand jury indictment where grand jury could reasonably infer from two blood alcohol tests taken within reasonable time after driving that defendant's blood alcohol concentration was .08 or higher when he was driving); Anderson v. State, 109 Nev. 1129, 1135, 865 P.2d 318, 321 (1993) (pointing to retrograde extrapolation evidence in concluding that State presented sufficient evidence to support conviction). We take this opportunity to expressly recognize the relevance of retrograde extrapolation evidence. Retrograde extrapolation evidence is relevant to the two theories of driving under the influence charged in this case, as it has a tendency to make the existence of a consequential fact—the level of alcohol in a defendant's blood at a certain point in time—more probable than it would be without the evidence.



[9] Description: Headnote Citing References[10] Description: Headnote Citing ReferencesHaving determined that retrograde extrapolation evidence is relevant, we turn to the second question in determining whether retrograde extrapolation evidence is admissible: the danger of unfair prejudice. Under NRS 48.035(1), relevant evidence is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice.” Because all evidence against a defendant will on some level “prejudice” ( i.e., harm) the defense, NRS 48.035(1) focuses on “unfair” prejudice. This court has defined “unfair prejudice” under NRS 48.035 as an appeal to “the emotional and sympathetic tendencies of a jury, rather than the jury's intellectual ability to evaluate evidence.” Krause Inc. v. Little, 117 Nev. 929, 935, 34 P.3d 566, 570 (2001); Schlotfeldt v. Charter Hosp. of Las Vegas, 112 Nev. 42, 46, 910 P.2d 271, 273 (1996). Although unfair prejudice commonly refers to decisions based on emotion, it is not so limited. See generally Fed.R.Evid. 403 advisory committee's note (explaining that unfair prejudice in federal analog to NRS 48.035(1) is an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one”); Tome v. United States, 513 U.S. 150, 160, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (stating that Advisory Committee Notes are helpful guide to interpreting Federal Rules of Evidence). As the United States Supreme Court has explained in addressing Federal Rule of Evidence 403,FN4 “[t]he term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States. 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); see also Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 188 (3d Cir.1990) (describing unfair prejudice as “undue tendency to suggest decision on an improper basis” (internal quotations omitted)); accord People v. Greenlee, 200 P.3d 363, 367 (Colo.2009) (noting that “[e]vidence is unfairly prejudicial where it introduces into the trial considerations extraneous to the merits, such as bias, sympathy, anger, or shock”); Camp Takajo, Inc. v. SimplexGrinnell, L.P., 957 A.2d 68, 72 (Me.2008) (stating that “unfair prejudice ... refers to an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one” (quotation and footnote omitted)).



*4 Here, the district court's concern regarding unfair prejudice centered on the “many unknown variables” in the retrograde extrapolation calculation coupled with the reliance on a single blood sample. The suggestion is that the evidence is of limited probative value given those variables and the single sample, but the evidence itself is likely to move a jury to declare guilt based solely on a reaction to the blood alcohol level and the very real devastation caused by drunk driving rather than proof that the defendant was driving while under the influence or with a prohibited blood alcohol level. We, along with other jurisdictions, share the district court's concern.



Some jurisdictions have determined that the admissibility of retrograde extrapolation depends on whether enough factors affecting the calculation are known and have expressed concerns with calculations that rely solely on average rates of absorption and excretion. For example, in Mata v. State, the Texas Court of Criminal Appeals provided some guidance by explaining three factors courts should use in evaluating the reliability of retrograde extrapolation:



(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.


46 S.W.3d 902, 916 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.Sd 657, 660–61 (Tex.App.2002). The court declined to design an “exact blueprint” for all cases and recognized that not every personal fact about the defendant must be known to construct a reliable extrapolation—otherwise “no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process.” Id. at 916–17. The court also indicated that the significance of those personal factors is influenced by the number of blood alcohol samples obtained and the time between multiple samples:

If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's [blood alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.


*5 Id.; see also Burns v. State, 298 S.W.3d 697, 702 (Tex.App.2009) (concluding that expert's testimony was unreliable due to expert's admission that “he knew none of the factors required by Mata when only a single test is available” and because testimony was unreliable, it was irrelevant and “its probative value was greatly outweighed by its prejudicial effect”); accord Com. v. Petrovich, 538 Pa. 369, 648 A.2d 771, 773 (Pa.1994) (upholding trial court's conclusion that retrograde extrapolation expert's testimony was incomplete and elicited “an expert opinion which is necessarily based upon average dissipation rates, average absorption rates, and the alcohol content of the average drink” (internal quotations omitted)). See generally Kimberly S. Keller, Sobering Up Daubert: Recent Issues Arising in Alcohol–Related Expert Testimony, 46 S. Tex. L.Rev. 111, 122–29 (2004) (discussing concern in scientific community over the use of retrograde extrapolation calculations that do not employ factors that affect individual absorption and elimination rates, including (1) the type and amount of food in the stomach, (2) gender, (3) weight, (4) age, (5) mental state, (6) drinking pattern at the relevant time, (7) type and amount of beverage consumed, and (8) elapsed time between the first and last drink taken).

[11] Description: Headnote Citing References[12] Description: Headnote Citing ReferencesWe agree that achieving a reliable retrograde extrapolation calculation requires consideration of a variety of factors. The following factors are relevant to achieving a sufficiently reliable retrograde extrapolation calculation: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) the type and amount of food in the stomach, (7) type and amount of alcohol consumed, (8) when the last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between the first and last drink consumed, (11) time elapsed between the last drink consumed and the blood draw, (12) the number of samples taken, (13) the length of time between the offense and the blood draws, (14) the average alcohol absorption rate, and (15) the average elimination rate. We observe, as the Mata court did, that not every personal fact about the defendant must be known to construct a reliable extrapolation, 46 S.W.3d at 916–17, but rather those factors must be balanced.



Turning to this case, the State and Armstrong presented experts who calculated Armstrong's estimated blood alcohol level based primarily on factors attributed to the “average” person and various hypothetical situations. The factors used in those calculations included: Armstrong's admission to the investigating officer at the scene that he drank two beers between 5 p.m. and 10 p .m., records indicating that Armstrong weighed 212 pounds, the time of the accident, the time of the blood draw, and the blood alcohol level in the single sample (.18). There was no evidence presented concerning Armstrong's age or height, the type and amount of food in his stomach, if any, his regular drinking pattern, or his emotional state after the collision.



*6 [13] Description: Headnote Citing ReferencesAlthough several of the factors identified above were known, other significant factors were not and, significantly, only one blood draw was obtained. As the Mata court recognized, the significance of personal factors is influenced by the number of blood alcohol tests. “[A] single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.” Id. at 916. Here, significant personal characteristics, such as the type and amount of food, if any, in Armstrong's stomach—a factor that Armstrong's expert testified was the most important and the State's expert acknowledged significantly affects alcohol absorption—were unknown. And the single blood draw makes it difficult to determine whether Armstrong was absorbing or eliminating alcohol at the time of the blood draw. The admission of retrograde extrapolation evidence when a single blood draw was taken more than two hours after the accident and the extrapolation calculation is insufficiently tethered to individual factors necessary to achieve a reliable calculation potentially invites the jury to determine Armstrong's guilt based on emotion or an improper ground—that the defendant had a high blood alcohol level several hours later—rather than a meaningful evaluation of the evidence. Thus, although relevant, the probative value of the extrapolation evidence could be sufficiently outweighed by this danger of unfair prejudice to preclude its admission.FN5 Under the circumstances presented, we cannot say that the district court manifestly abused or arbitrarily or capriciously exercised its discretion, that is, applied a clearly erroneous interpretation of the law or one not based on reason or contrary to the evidence or established rules of law.



We are not unmindful of the State's concerns about prosecuting offenders for driving under the influence, but the State's accusations that the district court's order “precludes the state from ever convicting a drunk driver of having a .08 or more at [the] time of driving” and “legalizes driving under the influence of alcohol so long as a chemical test is not done within two hours of driving” go a step too far. The State may present evidence that is relevant and not unfairly prejudicial. NRS 48.025(1); NRS 48.035(1). Although retrograde extrapolation has its place in proving that a defendant was driving under the influence, it also has the potential to encourage a conviction based on an improper basis when the calculation is not sufficiently reliable in a given case. There may be circumstances consistent with this opinion in which a calculation based on the results of a single blood sample is reliable and whose relevance is not substantially outweighed by the danger of unfair prejudice; that is up to the district court to determine on a case-by-case basis. But even when retrograde extrapolation evidence is not admissible, other evidence may establish that a defendant was driving under the influence as prohibited by NRS 484C.430(1)(a). See Sheriff v. Burcham, 124 Nev. 1247, 1258, 198 P.3d 326, 333 (2008) (concluding that State presented sufficient evidence to establish probable cause to believe defendant was driving under the influence based on testimony about defendant's driving and circumstances of accident, defendant's smell and physical appearance after accident, and defendant's admissions about drinking). Because the State has not demonstrated a manifest abuse or arbitrary or capricious exercise of discretion in this case, we deny the petition.



We concur: SAITTA, C.J., CHERRY, GIBBONS and PARRAGUIRRE, JJ.



PICKERING, J., with whom HARDESTY, J., agrees, dissenting:



*7 The majority's analysis does not distinguish between the science of retrograde extrapolation and the legal standards by which the admissibility of expert testimony is judged and, as a result, falls into error. Only one toxicologist, Dr. Hiatt, testified at the hearing on Armstrong's motion to suppress.FN1 (The other witness, Terry Cook, is a forensic chemist who tests blood for alcohol content; he does not perform retrograde extrapolation.) Dr. Hiatt testified that the known facts of this case “fit” the science of retrograde extrapolation, permitting an inference that, if Armstrong's blood alcohol level was .18 two hours and 21 minutes after the collision, it was at least that, and probably higher, at the time the collision occurred. Such evidence is directly relevant to the charges Armstrong faces: driving under the influence of alcohol, NRS 484C.430(1)(a), and/or driving with a .08 or greater blood alcohol level, NRS 484C.430(1)(b), resulting in substantial bodily harm, a category B felony.



The “unknown variables” that led the district court to exclude Armstrong's test results—variables the majority recasts as “factors” but equally fails to tie to the science—might invite unreliable extrapolation in some cases but, per Dr. Hiatt, this is not such a case. True, there was only one blood draw. If we didn't know whether Armstrong was in the absorption or the elimination phase when his blood was drawn, that could render the test scientifically indeterminate and the test results inadmissible. Here, however, Dr. Hiatt testified that the known facts, combined with the science of retrograde extrapolation, put Armstrong squarely in the elimination phase when his blood was drawn.



The known facts on which Dr. Hiatt relies are these: (1) Armstrong told the police at the scene that he had been drinking beer but that he stopped drinking at 10 p.m.; (2) the collision occurred at 1:30 a.m.; and (3) Armstrong traveled by ambulance from the scene to the hospital, where his blood was drawn at 3:51 a.m. Unless Armstrong lied to the police—significant in its own right—three and one-half hours elapsed between the time of his last drink and the collision. And unless the police, the ambulance technicians, or the hospital staff served Armstrong alcohol, of which there is zero evidence, nearly six hours elapsed between the time of Armstrong's last drink and the blood draw.



“When a person stops consuming alcohol, his or her body eventually reaches an absorption point, where the body completes absorption of the alcohol he or she has ingested, and enters the elimination phase, where the body is only eliminating alcohol.” United States v. Tsosie, 791 F.Supp.2d 1099, 1103 (D.N.M.2011). While a person's blood alcohol level will rise even after he or she stops drinking, once the absorption phase ends, the blood alcohol levels decline. Id. The uncontested evidence presented to the district court established that the absorption process generally requires one to three hours. Based on Armstrong's statement to the police that he finished his last drink by 10 p.m., Dr. Hiatt opined that Armstrong had completed his absorption phase before the collision. His blood alcohol level “should have peaked by [1:30 a.m.]. It's hard to imagine a scenario in which it would not have reached a peak at the time.”



*8 Once a person completes absorption and enters the elimination phase, blood alcohol levels decline in linear fashion at a rate ranging from .015 to .02 mg/mL/h (Dr. Hiatt) or .01 to .03 mg/mL/h (Mr. Cook). Since Armstrong's blood alcohol was .18—more than twice the legal limit—two hours and 21 minutes after the collision and almost six hours after he said he took his last drink, Dr. Hiatt was prepared to opine to a reasonable degree of scientific certainty that Armstrong's blood level at the time of the collision was at least a .08 which, assuming the other elements of the offense are shown, establishes a violation of NRS 484C.430(1)(b). “[I]f this was a borderline case, I would not feel comfortable making these statements, but this is clearly not a borderline case.” Using Armstrong's 3:51 a.m. blood alcohol level of .18 and Dr. Hiatt's .015 elimination rate, and accepting that Armstrong had entered the elimination phase by 1:30 a.m., in fact, yields an approximate blood alcohol level at the time of the collision of .21.



Retrograde extrapolation enjoys “general acceptance in the scientific community,” Shea v. Royal Enterprises, Inc., No. 09 Civ. 8709(THK), 2011 WL 2436709, at *4 (S.D.N.Y. June 16, 2001) (canvassing cases), and has been recognized as the legitimate subject of expert testimony in Nevada, Anderson v. State, 109 Nev. 1129, 1135, 865 P.2d 318, 321 (1993); see Sheriff v. Burcham, 124 Nev. 1247, 198 P.3d 326 (2008), and in state and federal courts across the country, 1 Kenneth S. Broun, McCormick on Evidence § 205, at 849 (6th ed.2006) (“arguments that the extrapolation process itself is so uncertain as to be inadmissible under [either the] Frye or Daubert [tests for admitting expert testimony] have not prevailed”). Individual facts in individual cases may make it scientifically inappropriate to use a defendant's post-accident blood alcohol level to infer his blood alcohol level while driving. Classic examples include the case of a defendant who continues to drink after the accident and before the blood draw, skewing his test results, United States v. DuBois, 645 F.2d 642 (8th Cir.1981); the hypothetical defendant who drinks nothing until seconds before the accident, then “chug-a-lugs” a huge quantity of vodka, and so was just beginning his absorption phase when he crashed, but see State v. Burgess, 188 Vt. 235, 5 A.3d 911, 917–18 (Vt.2010) (rejecting hypothetical “chug-a-lug” theory as a basis for excluding blood alcohol results where there was no evidence to support it and the defendant told the police he had had only had one beer); or where the blood alcohol test results are close to the legal limit and their relevance depends on whether the defendant was in the absorption or elimination phase, of which there is no proof. For a general discussion, see 5 David L. Faigman, Michael J. Sakes, Joseph Sanders & Edward K. Cheng, Modern Scientific Evidence: The Law and Science of Expert Testimony § 41:7 (2010).FN2



*9 Nothing approaching these situations obtains here. The admission or exclusion of evidence is unquestionably entrusted to the sound discretion of the district court. See Williams v. Dist. Ct., 127 Nev. ––––, ––––, 262 P.3d 360, 364 (2011). Nonetheless, the majority has elected to accept writ review in this case and to affirm a decision that misapplies established law recognizing the admissibility, in proper circumstances, of blood test result and retrograde extrapolation evidence in DUI cases. My research shows no other case to have excluded such evidence on comparable facts and a number that have deemed it scientifically reliable and admissible. State v. Patterson, 708 S.E.2d 133 (N.C.Ct.App.2011) (canvassing cases); State v. Burgess, 188 Vt. 235, 5 A.3d 911 (Vt.2010); United States v. Cope, No. 11–cr–00106–JRT, 2011 WL 2491283 (D.Colo. June 17, 2011); United States v. Tsosie, 791 F.Supp.2d 1099 (D.N.M.2011). Where, as here, an evidentiary issue concerning expert testimony presents questions of law as well as discretion, and is of significant importance to the administration of justice, this court has not hesitated to grant writ relief. Williams, 127 Nev. at ––––, 262 P.3d at 364–65. Because I would grant writ relief in this case and direct the district court to admit the evidence it has suppressed, I respectfully dissent.



I concur: HARDESTY, J.



FN1. The State did not charge Armstrong with a violation under NRS 484C.430(1)(c).

FN2. The State filed its petition in the alternative, seeking relief in mandamus or prohibition. Because prohibition is focused on arresting the proceedings of a district court that is acting in excess of its jurisdiction, NRS 34.320, and the district court here clearly had jurisdiction over the prosecution and to decide evidentiary issues, we conclude that prohibition is not the appropriate vehicle for seeking relief in this matter.

FN3. The district court's order is not entirely clear on this point, but its focus on unfair prejudice indicates that the district court determined that the evidence was relevant since the weighing determination for unfair prejudice presupposes that the evidence is relevant. See NRS 48.035(1) (“Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice....”).

FN4. Rule 403 is the federal counterpart to NRS 48.035 and provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

FN5. The district court also excluded the blood alcohol level shown in the test result but allowed the State to present general evidence that there was alcohol in the blood sample, which was relevant to the State's theory under NRS 484C.430(1)(a). Admitting the specific blood alcohol level in this case, where there was a single blood draw, without extrapolation testimony could encourage a guilty verdict based on similar improper grounds as discussed above.

FN1. Dr. Hiatt holds a B.A. in chemistry from Occidental College, a Ph.D. in organic chemistry from Yale University, and did significant post-doctoral work in clinical chemistry at the University of California Medical Center in San Francisco. He worked for many years as a toxicologist in Las Vegas before his retirement.

FN2. The majority places great emphasis on Mata v. State, 46 S.W.3d 902 (Tex.Crim.App.2001). Of critical significance, the expert in Mata did not know “the length of the drinking spree, the time of the last drink, and the person's weight,” id. at 915, all of which were established here by Armstrong or his hospital records. Also significant, Texas requires expert proof to be by clear and convincing evidence, Morris v. State, 214 S.W.3d 159, 173 (Tex.App.2007), and Mata has since been limited and held not to preclude blood test result evidence when expert retrograde extrapolation testimony is not offered. Bagheri v. State, 329 S.W.3d 23, 27 (Tex.App.2010). The evidentiary use Bagheri permits is, of course, one of the uses to which the State wishes to put Armstrong's blood test results here, a point the majority elides.

Nev.,2011.
State v. Eighth Judicial Dist. Court of State ex rel. County of Clark
--- P.3d ----, 2011 WL 6840685 (Nev.), 127 Nev. Adv. Op. 84